Efforts to establish labor legislation in the nation during the early 1900s faced difficulties. A more compelling argument justifying a need for such legislation was lacking, its proponents knew, and while some labor legislation had been enacted, some had proven to be ineffective, and some unconstitutional. Undaunted by all this, John R. Commons ranged beyond his work on the American labor union movement, and entered a further stage in the development of his thought by creating--as a supplement to collective bargaining by capital and labor--a plan for constitutional labor legislation to be made effective by an "industrial" commission. His work on this plan among his other endeavors began in earnest but slowly in 1906, accelerated, and climaxed in 1916 when aided by his students and particularly by John B. Andrews, he published Principles of Labor Legislation (1916) (hereafter POLL). (1)
Commons had impressive credentials to develop his plan. In 1906, he helped Richard T. Ely and others found the American Association for Labor Legislation (hereafter AALL), in 1907, he became the AALL's secretary, in 1907-08 he started teaching an undergraduate and graduate course on labor legislation (University of Wisconsin Catalogue 1907-1908, 133), and began to publish articles on the subject. Meanwhile, during the golden days of progressivism in the state, Wisconsin's Governor, Robert M. LaFollette had enlisted Commons to help draft legislation. Titling himself a "LaFollette Progressive" (Commons  1964, 121), he began a study of law, especially constitutional law, and those studies plus counsel from several lawyers yielded, he thought, "the best university education I ever had" (127). He became knowledgeable about Wisconsin's Railroad (Commons 1905) and Public Utility Commissions. Then, prompted by a request by LaFollette's successor, and aided by his students' research (129, 154) and his collaboration with Charles McCarthy, in 1911 he drafted the law creating the state's Industrial Commission. He served on it as a commissioner from 1911 to 1913 and on the U.S. Commission on Industrial Relations (hereafter COIR) from 1913 to 1915, learning about the workings of state and federal administrative commissions and the arguments for and against them.
His plan succeeded. It resulted in labor legislation and a Wisconsin Industrial Commission that "Ohio, New York and Colorado have already copied ... with modifications," he noticed (Commons 1916a, 1).
Yet the argument that made his plan successful remains obscure, and understandably so, for its parts are scattered across numerous short pieces, with the largest part reposing in disarray in POLL. Complicating matters, while POLL's preface states that the book compiles the history of labor legislation, and is written from the standpoint of citizens and students, not lawyers, emphasizing throughout not the details but the principles of labor legislation, the reviewers, after complimenting the compilation and the chapter on administration, found otherwise. POLL was "essentially a law book" treating questions of "technical legality" and often the constitutionality of labor legislation (Powell 1917, 266), the principles of labor legislation were absent or else unclear (Barnett 1916; Foerster 1916; McCabe 1916), and, one reviewer concluded, it was inter alia "a propagandist work of the highest type, although nowhere does it profess to be such" (Groat 1917, 158).
However, the argument that impelled Commons' plan on to success becomes clear when it is situated in the conditions and ideas surrounding him. The primary thesis of this essay is that his plan succeeded because it has four component parts: (1) it justifies a need for labor legislation, (2) argues that labor legislation is constitutional, (3) proposes that an "industrial" commission can cure the problem of ineffective labor legislation, and (4) contends that such a commission is constitutional. The secondary thesis is that his own plan can be identified relative to the ideas of those who influenced him.
While valuable literature has accumulated touching on aspects of the first and third component parts of his plan, (2) further important aspects demand attention. The second and fourth parts have lingered in darkness and need illumination.
This essay will survey the surrounding conditions and ideas that influenced Commons, cast into order his reasoning in POLL and fill it in when necessary with passages from his other writings, critically examine the four components parts, and conclude about his plan as a whole.
The Surrounding Conditions and Ideas That Influenced Commons
Industrialization and immigration were booming in the nation in the early 1900s, trusts had arisen, and some firms in some labor markets had enough market power to set low wage rates and impose burdensome and hazardous working conditions. Muckrakers were busy (Hofstadter 1955, 186-214). Among those who knew these economic conditions perhaps the foremost savant was Commons himself due to his investigations afield into labor market conditions during 1899 to 1904 (Gonce 2002), and his well-known work after 1904.
The legal environment was largely unsympathetic to labor. Aggrieved and injured workers had gone to court. They lost. Then "legislatures responded to the demands of labor for legislation" (POLL, 27), but the U.S. Supreme Court looked askance at social legislation innovative upon common law (Pound 1908a, 385, 401-402), and held that much labor legislation violated clauses in the Constitution's 14th Amendment.
Social reformers were considering four issues. First, a need for labor legislation had to be more compellingly justified, and this was a factor inspiring Ely, Commons, Louis D. Brandeis, Ernst Freund, and others to found the AALL in 1906. Second, by striking down much labor legislation the courts had set off a popular dissatisfaction with law (Pound 1906a; see also 1907b) that burgeoned, exciting "a clamor for the recall of judges and judicial decisions" and a demand for "amendment of constitutions and even for their complete abolition" (Brandeis 1916, 464). This stirred up an issue: without amending the Constitution, could the court opinions be controverted, proving labor legislation constitutional? Third, some labor legislation had been ruled constitutional, and yet had been ineffective. What caused ineffectiveness? Badly drafted legislation was one cause, and another was "defective administration," Roscoe Pound (1910, 34, 35) thought. The reformers wondered: could the creation of an administrative commission cure this? Fourth, were commissions constitutional?
Certain highly qualified men had been grappling with one or more of these issues and their ideas influenced Commons. They were William F. Willoughby, (3) Charles McCarthy, (4) Louis D. Brandeis, (5) Ernst Freund, (6) Ely, and Pound. (7) Willoughby had given the AALL presidential address in 1913, and edited the series that published Commons' POLL. Of McCarthy, Commons ( 1964, 107) said: "I came to depend on him for everything I tried to do in the state of Wisconsin." Brandeis, Freund, and Ely had "given valuable criticisms and suggestions" for his manuscript for POLL, Commons acknowledged (POLL, "Preface"). The ideas of Pound, "the most important progressive legal thinker" (Horwitz 1992, 18), influenced Commons via Edward A. Ross, (8) or Ely, or McCarthy, circumstantial evidence indicates. (9)
Commons' Successful Plan
Relative to the ideas of those who influenced him, what were Commons' own contributions in each of the four parts of his plan?
A Need for Labor Legislation Is Justified
Willoughby and Ely led the way for Commons. A better justification for labor legislation was needed, Willoughby (1914) contended in his AALL presidential address. To convince people that social legislation was desirable a shift should be made to the "social philosophy" of "modern liberalism" with its positive conception of freedom and its belief that legal restraints paradoxically can expand the field of freedom. Moreover, a shift should be made to a "political philosophy" teaching that "the fundamental conditions under which industry should be carried on, and labor performed, is, or should be a prime function of the state" (Willoughby 1914). In addition, Willoughby (1913) had produced a brief justification for social insurance.
Ely in 1914 had published his Property and Contract in their Relations to the Distribution of Wealth (1914) (hereafter PAC). Blistered by reviewers as disorganized and discursive (Beard 1915; Nearing 1915; Sanger 1915), PAC has several facets, but a large one passed over by the reviewers and later by Rader (1966), presents what Ely called a "liberal" or "progressive social philosophy" (PAC, 685, 694) able to justify a need for labor legislation. Several of its tenets stand out. Evolution is affirmed. Natural law thought is dismissed (PAC, 504, 532-534). Society is viewed as an organism made up of social classes; society manifests "social solidarity" (PAC, 645, 698), a principle representing a "true ideal ... midway between anarchy and socialism" (Ely 1902, 77). Society exerts causal forces and possesses legal rights. Ely's ethics makes each individual's self-realization for the sake of others the moral good (PAC, 820, 613-615; Gonce 1996 provides evidence). For the moral good to be attainable, several social conditions are necessary, although not sufficient, and they include individual freedom, and Ely, citing Thomas Hill Green (PAC, 611-613), stands for a positive conception of freedom: individuals are to be free from powerlessness, insecurity, coercion imposed by persons and economic forces, and free, thanks to restraints that can open social freedom, (10) and thus to be free to pursue self-realization. This freedom is a "social product, a social acquisition," and the state is "the organ of freedom" (PAC, 612, 608). Following Rudolf von Ihering's Der Zweck im Recht...