Key Takeaways
1. American Labor's Early Radicalism Was Reshaped by Legal Repression.
The American labor movement, these scholars have shown, was not born with a voluntarist perspective.
Challenging exceptionalism. Traditional accounts often portray American workers as inherently conservative, lacking "class consciousness" compared to their European counterparts. However, new historical research reveals that in the Gilded Age (1870s-1890s), most American trade unionists embraced broad, radical reform ambitions, putting great faith in political action and legislation to transform industry. Organizations like the Knights of Labor, with nearly a million members, exemplified this, advocating for:
- Shorter workdays and workplace regulations
- Abolition of private banking
- Public funding for worker-owned industry
- Nationalization of monopolies
Beyond "pure and simple." Even early American Federation of Labor (AFL) activists, including Samuel Gompers, initially shared these radical aspirations, often supporting socialist platforms and class-based political movements. The idea that the AFL was always committed to "pure and simple" trade unionism, shunning politics, is a retrospective misinterpretation. The shift towards a narrower, anti-statist philosophy was a later development, not an inherent characteristic.
External pressures. This transformation was not an internal evolution but a response to external forces, particularly the legal and political environment. The suppression of broad-based movements and legislative efforts by the state played a crucial, often overlooked, role in pushing American labor away from its initial radicalism and towards a more cautious, defensive stance.
2. The Judiciary, Not Inherent Conservatism, Drove Labor's Voluntarist Turn.
The voluntarism of the AFL in the Gompers era expressed the deep disillusionment with reform by legislation that resulted from labor’s encounters with the legal order.
Judicial supremacy's impact. The prevailing view that American labor's "voluntarism"—its reliance on economic action over state intervention—stemmed from workers' inherent individualism or social mobility is flawed. Instead, the judiciary's unique and powerful role in the American state, particularly its consistent invalidation of labor laws, profoundly shaped labor's strategic choices. This made broad legislative reforms seem futile and dangerous.
Lessons from defeat. Samuel Gompers's own experience with the New York Court of Appeals' decision in In re Jacobs (1885), which struck down a law prohibiting cigar manufacturing in tenements, was a turning point. Despite years of campaigning and legislative success, the judicial nullification led Gompers and the Cigarmakers' Union to abandon legislative efforts in favor of "strikes and agitation," demonstrating that economic power could achieve what law could not.
A constrained choice. This shift was not a natural preference but a pragmatic adaptation to a hostile legal landscape. The courts' actions, coupled with the fragmented nature of American political parties and the absence of a strong administrative state elite (unlike in Europe), channeled labor's energies away from political reform and towards a more limited, economic-focused strategy.
3. Judicial Review Systematically Nullified Labor's Legislative Ambitions.
For workers, judicial review—the invalidation of labor laws under the language of ‘‘liberty of contract’’ and ‘‘proper rights’ became both evidence and symbol of the intractability of the American state from the perspective of labor reform.
Constitutional barriers. From the 1880s through the early 1900s, state and federal courts consistently struck down labor legislation, often citing "liberty of contract" and "property rights" as constitutional grounds. These included laws aimed at:
- Establishing maximum working hours (e.g., eight-hour days for women and miners)
- Prohibiting anti-union discrimination (yellow-dog contracts)
- Regulating wage payments (e.g., weekly pay, banning scrip)
- Improving workplace safety and conditions
Futility of reform. The experience in Illinois, where an eight-hour law for women and children was struck down in Ritchie v. People (1895), and in Colorado, where miners' hours laws were repeatedly invalidated, demonstrated the judiciary's power to thwart popular legislative will. This judicial hostility made broad legal reforms appear "futile," leading many labor leaders to question the value of political engagement.
Fragmenting labor identity. Courts often upheld protective legislation only for "dependent" groups like women and children, while rejecting similar laws for "free adult workers." This constitutional segmentation reinforced gender-based divisions within the labor movement, encouraging unions to champion narrow, gender-specific protections rather than universal, class-based reforms.
4. The Labor Injunction: America's Distinctive Tool for Controlling Industrial Strife.
Indeed, the injunction proved to be ‘‘America’s distinctive contribution in the application of law to industrial strife;’’
A unique legal weapon. Unlike in other industrial nations, the labor injunction became the primary means of judicial intervention in American labor disputes from the late 19th to early 20th centuries. While substantive labor law remained relatively stable, its application dramatically changed, with injunctions replacing criminal conspiracy trials as the dominant form of legal repression. These decrees often targeted:
- City-wide boycotts and sympathy strikes
- Organizing drives and union recognition efforts
- Strikes for closed shops or work-rule enforcement
Expanding judicial reach. The injunction's rise coincided with the emergence of more coordinated and inclusive unionism, which judges viewed as a threat to their vision of "legal order" and "free labor." Courts expanded equity jurisdiction beyond its traditional limits, treating employers' business relations and "goodwill" as property rights deserving of injunctive protection, even against peaceful collective action.
Destroying broad unionism. The In re Debs (1895) Supreme Court decision, upholding blanket injunctions against the Pullman Strike, solidified the federal judiciary's role in policing strikes. This legal repression, often backed by federal troops, effectively destroyed broad-based organizations like the American Railway Union (ARU) and the Knights of Labor's railway branches, forcing unions to abandon inclusive strategies for narrower, craft-based approaches.
5. Courts Actively Usurped Local Authority and Sanctioned Anti-Union Force.
Every injunction represented a new, particularized set of legal commands for strikers that supervened the policies and discretion of local officials.
Overriding local will. Injunctions frequently allowed courts to bypass local juries and elected officials, who were often more sympathetic to strikers. Judges openly criticized mayors and sheriffs for their perceived "derelictions of duty" in quelling labor unrest, effectively usurping local control over public order during strikes. This was particularly evident in cases where local police were reluctant to suppress peaceful picketing.
Legitimizing private force. Injunctions provided a legal veneer for employers to use private guards, strikebreakers, and even deputized company personnel to enforce court orders. Strikers often reported being assaulted by "sluggers" carrying copies of injunctions, turning what might have been peaceful protests into violent confrontations. This judicial sanctioning of private force contributed to the high levels of labor violence in the U.S. compared to other industrial nations.
Constitutional crisis. The widespread use of injunctions, often backed by state militia or federal troops, created a sense of constitutional crisis within the labor movement. Workers and their allies saw the courts as actively allying with corporate interests, undermining fundamental rights like free assembly and speech, and transforming ordinary protest into "outlaw" acts.
6. Engagement with Law Transformed Labor's Language of Rights and Protest.
The language of the law thus becomes, in some measure, a vulgar tongue. And the spirit of the law penetrates into the bosom of society, even into the lower classes.
Adopting legalistic rhetoric. Faced with pervasive judicial intervention, labor leaders, despite their initial disdain for legalistic arguments, increasingly adopted the language of the law to articulate their grievances. This meant shifting from a republican discourse of "wage slavery" and "republican self-rule" to a liberal, laissez-faire "rights talk" that mirrored their judicial adversaries.
"Liberty of contract" for labor. AFL spokesmen began to argue that labor's freedom to organize and strike was protected by the same principles of "freedom of contract" and "competitive freedom" that employers invoked. They contended that denying unions these rights granted capital "special treatment" and violated the principle of "equality before the law." This approach, while strategic, implicitly accepted the legitimacy of the capitalist marketplace.
Subversive constitutionalism. Labor also drew on radical strains within constitutional tradition, particularly the Thirteenth and First Amendments. They framed anti-strike injunctions as "judicial reenactments of slavery," arguing that forcing workers to toil against their will violated the Thirteenth Amendment's promise of "free labor." Similarly, injunctions against peaceful assembly and persuasion were condemned as infringements on First Amendment rights, linking labor protest to the revered tradition of citizenly association and redress of wrongs.
7. Widespread Defiance of Injunctions Forced a Reassessment of the Legal Order.
Mass protests accompanied this campaign.
Principled disobedience. From the 1900s through the 1920s, labor movements engaged in a widening campaign of "massive and articulate defiance" of court injunctions. This was not mere lawlessness but a principled disobedience, often framed as "obedience to law" in the face of "unjust law." Leaders like Samuel Gompers and Eugene Debs publicly violated injunctions, speaking at banned rallies and joining picket lines.
Moral and political pressure. This defiance, often met with arrests and jail terms, served two crucial purposes:
- Exposing coercion: It visibly demonstrated the coercive nature of the legal regime, disturbing the consciences of lawmakers and reformers who preferred a less overtly repressive industrial order.
- Legitimizing grievances: It showed that workers viewed the judge-made rules as illegitimate, not just inconvenient, thereby undermining the courts' authority and forcing political elites to acknowledge labor's "exiled constitutional claims."
Anti-slavery precedent. Labor leaders frequently invoked the anti-slavery movement as a "sacred precedent" for defying unjust laws. They argued that just as the Thirteenth Amendment repudiated property rights in man, so too should the law reject the idea of employers having a property right in their workers' labor or contracts. This powerful analogy resonated with a broader public.
8. The Norris-LaGuardia Act: A Legislative Victory with Enduring Legal Ambiguities.
The Clayton Act was the product of twenty years of voluminous agitation. It came as clay into the hands of the federal courts . . . The result justifies an application of a familiar bit of French cynicism: the more things are legislatively changed, the more they remain the same judicially.
Legislative frustration. Despite decades of lobbying, early attempts to curb injunctions, like the Clayton Act of 1914, proved largely ineffective. Courts narrowly interpreted provisions intended to protect labor, often finding that employers still possessed "property rights" in their businesses that justified injunctions against strikes and boycotts. This judicial resistance highlighted the deep entrenchment of the anti-labor legal framework.
A new approach. By the late 1920s, a growing consensus among progressive lawyers, academics, and politicians, alarmed by the courts' erosion of legitimacy and the escalating industrial unrest, led to the drafting of the Norris-LaGuardia Act. This bill, championed by Senator George Norris and drafted by legal reformers like Felix Frankfurter, aimed to drastically limit federal courts' jurisdiction to issue labor injunctions and outlawed "yellow-dog contracts."
Partial victory. Passed in 1932 with overwhelming bipartisan support, Norris-LaGuardia was a landmark achievement, effectively ending the era of "government by injunction." Its preamble explicitly recognized the "helplessness" of individual workers and the necessity of collective action. However, it did not fundamentally alter the underlying legal concepts of property or the commodification of labor, leaving open avenues for future judicial reinterpretation.
9. The Legal Commodification of Labor Persisted Beyond Early Reforms.
The old common law concepts rule from the grave. Labor remains a commodity in contemporary constitutional law.
Unintended consequences. While Norris-LaGuardia curbed injunctions, the subsequent Wagner Act (National Labor Relations Act) of 1935, designed to provide positive protections for organizing and collective bargaining, also inadvertently resurrected some old common law restraints. The new administrative regime, while pro-labor, still interpreted the law to prohibit many forms of secondary strikes and boycotts, echoing the injunction-era prohibitions.
Constitutional "black hole." Even today, labor protest often occupies a "constitutional 'black hole'," where it is denied the same First Amendment protections routinely extended to other forms of boycotting and peaceful picketing. This is because courts continue to treat labor primarily on "marketplace terms," viewing workers as "commodity sellers" whose activities are subject to rational basis review, rather than as citizens exercising fundamental associational and expressive liberties.
Enduring legacy. The book concludes that the legal order's role in shaping the American labor movement was profound and autonomous, not merely derivative. The "voluntarism" that came to define the AFL was a constrained response to judicial power. The persistent legal treatment of labor as a commodity, despite legislative reforms, demonstrates how deeply the "spirit of the law" penetrated society, influencing not only legal outcomes but also the very identity and capacities for collective action of the labor movement.
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