Excerpted From: Daniel Backman, “A Vast Labor Bureau”:  The Freedmen's Bureau and the Administration of Countervailing Black Labor Power, 40 Yale Journal on Regulation 837 (Summer, 2023) (216 Footnotes) (Full Document)


Labor markets, like all markets, are embedded in social relations. These social relations include hierarchies of political, economic, and racial power. Power imbalances in the social, political, and economic spheres reinforce one another, and law mediates those feedback loops. Capitalism purports to divide the “political” and the “economic,” yet even capitalist markets cannot escape governance, coordination, and coercion, sanctioned and structured by legal institutions both visible and submerged. Racial justice requires economic justice, and vice-versa. These ideas have, in various forms, undergirded progressive legal movements from Realism and Critical Legal Studies to Critical Race Theory and Law and Political Economy. For the freedmen and freedwomen seeking to exercise their new right to sell their labor in the post-Civil War South, these ideas described their lived reality.

In the brief period of Radical Reconstruction, an activist federal government sought to uproot the racial and economic hierarchy of the “Slave Power” and replace it with “abolition democracy.” “Free labor” was to supersede slavery as the organizing economic paradigm. In 1865, Congress created the Bureau of Refugees, Freedmen, and Abandoned Lands as the administrative agency tasked with reshaping the Southern economy and society in the mold of the Republicans' free labor ideal. As W.E.B. Du Bois would later describe it, what became known as the Freedmen's Bureau was “the most extraordinary and far-reaching institution of social uplift that America has ever attempted.” The Bureau, he wrote, instituted “a dictatorship by which the landowner and the capitalist were to be openly and deliberately curbed and which directed its efforts in the interest of a black and white labor class.” Arguably, never before or since has the U.S. government played such an active, visible, and explicit role in shaping and governing the relationship between worker and employer in the interest of the worker and in service of racial equality.

As today's legal scholars and reformers work to craft a more democratic, racially just political economy--in the face of interlocking crises of ongoing racial inequality, a persistent racial wealth gap, a declining labor share of income, and rising corporate monopoly power Freedmen's Bureau's example looms large. To be sure, these contemporary crises cannot be equated to the unique evils of slavery and post-emancipation racial oppression. Still, they share important economic, social, and political parallels. Indeed, many recent works by progressive legal scholars have looked to Reconstruction Era history--including that of the Freedmen's Bureau--in search of precedent and inspiration for new legal interpretations and reforms. As Wilfred Codrington III recently wrote, “The United States Needs a Third Reconstruction.”

Yet, for all of the copious legal literature on Reconstruction and the Freedmen's Bureau, relatively scant legal-theoretical attention has been paid to the Bureau's role as a labor-market institution. In particular, the Freedmen's Bureau goes almost undiscussed in today's legal literature on market governance, labor coordination, and antimonopoly administration. Instead, these works largely look to the Progressive and New Deal eras as models for inequality-reducing economic governance. At the same time, decades of historical work have uncovered in rich detail the decentralized, multi-faceted, participatory, profound--and profoundly imperfect--work of the Freedmen's Bureau in constructing and governing the Southern labor market. This Note delves into these historical sources to raise critiques of, and possibilities for, current thinking about labor-market governance and democratic administration in the shadow of monopoly power and racial oppression.

This Note contends that the Freedmen's Bureau, in establishing a “free labor” society in the South, combined a varied set of administrative and market governance approaches that aimed to equalize the socially and racially embedded bargaining power of Black workers. The Bureau, lacking significant redistributive authority, funding, and political support, nonetheless constructed countervailing power both within its own administration and within market relations. In so doing, it challenged the boundaries between the public and private, the economic and political, and the racial and economic in ways that can inform both the theory and practice of progressive labor, antitrust, and administrative law reform today.

Part I describes the Freedmen's Bureau's roots in the free labor ideology of the 1850s and 1860s. Part II analyzes primary documents from the Bureau's on-the-ground operations to chart how this sweeping administrative agency attempted to make the promise of “free labor” real, where it succeeded, and where it fell short. Part III advances proposals for incorporating the Bureau's best features into contemporary administrative and market governance strategies that seek to combat racial and economic inequalities. The conclusion further addresses why the Bureau model, despite its significant limitations, merits greater prominence in progressive regulatory thinking today.

[. . .]

The Freedmen's Bureau was a unique administrative agency in American history. It attempted to construct a “free” labor market from the ruins of a racist slave society. To do so, it worked to counteract the racially and economically coercive power of the planter class through novel forms of public coercion and administration. This experience reflected a core insight of the Realist and Progressive schools of legal and economic thought since: markets are unavoidably coordinated and governed. The key question was, and continues to be: What forms of coordination and governance do we want? At its best, the Freedmen's Bureau offered deeply pro-labor, anti-monopolist, racially egalitarian, substantively democratic answers to that question. As such, the Bureau's daily operations suggest paths for creating a more pro-labor, anti-monopolist, racially egalitarian, substantively democratic political economy and administrative state today.

This Note charts some of those paths. But it also leaves much uncharted. As the historical evidence demonstrates, the Bureau's work as an economic regulator was both sweeping and innovative. Its statutory authority--if not its actual financial or operational capacity--rivaled or surpassed the authority of Progressive and New Deal-era regulatory agencies that have come to represent the zenith of the federal administrative state. And whereas Progressive and New Deal regulatory movements neglected racial equality, or worked against it, the Freedmen's Bureau was explicitly racially egalitarian. Yet current progressive economic reform projects more often look to the Progressives and New Dealers, rather than the Reconstruction Republicans, for policy inspiration and legal precedent, including in labor, antitrust, and antimonopoly regulation. The historical record canvassed herein suggests the risks of such an oversight. This Note invites further research into both the legal-theoretical and practical lessons of the Freedmen's Bureau for economic regulation today.

Critically, the Freedmen's Bureau model has value for today's reformers not because it was perfect--or even more effective, on the whole, than later Progressive and New Deal approaches. Rather, the Bureau model holds promise because the best features of its labor-market governance anticipated many of these later eras' regulatory approaches and insights, while at the same time resisting strictures and boundaries that those eras left in their wake and that persist today. The Bureau's best labor governance strategies offer historical precedent for relatively racially egalitarian, participatory labor-market governance and should not be thrown out with the bathwater of the Bureau's limitations.

In that vein, one final lesson from the history recounted above merits notice. For all its innovation and promise, the Freedmen's Bureau also displayed the limits of building countervailing power through administration in the context of immense racial wealth inequality. Without the authority to redistribute property to the freedpeople, the Bureau was hamstrung from the outset. Its efforts to rebalance the bargaining equation and build both economic and political power among the freedpeople were ultimately insufficient to thwart the planters' reconstitution of economic and political control--and the concurrent importation of industrial monopoly power from the North. With most property left in the hands of large plantation owners and other monopolists, the original “free labor” vision of democratic capitalism and economic independence never had a chance to emerge. Ultimately, then, the Bureau's best market governance strategies should be seen as complements to, and not replacements for, wealth redistribution. To conclude with Du Bois's words, the “large legacy of the Freedmen's Bureau” is “the work it did not do because it could not.” Current efforts to reform market governance and democratic administration must do that neglected redistributive work, too.

Yale Law School, J.D. 2023. Harvard University, A.B. 2015.