Labor Movement

Author:William E. Forbath

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The American labor movement has had a passionate, paradoxical, and often bitter relationship with the Constitution. During the era of LOCHNER V. NEW YORK (1905), from the 1880s to the 1920s, most judges agreed that labor was a commodity like any other; the Constitution guaranteed workers the right freely to sell their labor "just as the employer may sell his iron or coal." During these decades, state and federal courts protected employers' and individual workers' rights to contract and compete in the marketplace free from what judges deemed unwarranted governmental interferences. Courts voided many hours and safety laws as unconstitutional interferences with liberty of contract. Courts enjoined strikes and BOYCOTTS as tortious interferences with employers' freedom of enterprise. Even in "legal" strikes, many state and federal courts held that there was no such thing as peaceful PICK-ETING.

The burdens of repression and semi-outlawry drove trade unionists to develop an alternative constitutional outlook. They assailed the COMMON LAW view that labor was a mere commodity and that employers could acquire a property right in their workers' labor or "human capacities." The INJUNCTIONS that forbade strikers' "interference" with this right were, in labor's view, "judicial re-enactments of slavery." The THIRTEENTH AMENDMENT?even some of the Supreme Court's own Thirteenth

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Amendment decisions?seemed to support these claims. According to the unions, the Thirteenth Amendment, which abolished slavery, was a "glorious labor amendment" that stood not only for self-owernship but also for labor's dignity and independence. These ideas drew upon the Lincolnian "Free Labor" philosophy of the Thirteenth Amendment's framers who vowed that the amendment would always stand as a shield against the oppression of "free labor both black and white."

Labor's constitutional critique of the injunction also invoked the FIRST AMENDMENT. However slight a feature of official constitutional doctrine, the First Amendment, in the eyes of nineteenth-century trade unionists, always stood for the sanctity of association by citizens and "uniting peaceably to redress wrongs." Injunctions against peaceful persuasion, meetings, publications, parades, and picketing "trampled on" this vision of the First Amendment.

During the Lochner era, only a few dissenting jurists embraced aspects of labor's constitutional vision. But labor's constitutional views were seconded by many NEW DEAL congressmen who championed the NORRIS-LAGUARDIA ACT and WAGNER ACT. These statutes supplanted the old common law regime and ushered in the modern labor-law era. Then, with the demise of Lochner -era SUBSTANTIVE DUE PROCESS and...

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