Labor's constitution of freedom.

• Author: Pope, James Gray

According to the standard story, the basic structure of modern constitutional law emerged from a clash between two great visions of judicial review: the laissez-faire constitutionalism of the so-called Lochner(1) Era, and the progressive vision concisely summarized in footnote four of United States v. Carolene Products.(2) The conflict is recounted as a human drama with a cast of characters that includes conservative jurists and businessmen on the Lochner side and reform-oriented professionals, intellectuals, and businessmen on the Carolene Products side.(3) At the climax, Justice Owen Roberts switches to the progressive side and the Wagner Act--centerpiece of the second New Deal--is upheld by a five-to-four vote in NLRB v. Jones & Laughlin Steel Corp.(4)

The standard story's embrace of human agency stops short of the working class. True, the great strike wave of 1934 provided the impetus for the Wagner Act and stiffened the Democrats' determination to regulate the national economy despite the Supreme Court's resistance. Workers usually appear, however, not as conscious human agents intervening in constitutional politics, but as a kind of natural force, devoid of independent constitutional thought.(5) When labor's constitutional ideology does make a cameo appearance in the standard story, it is as an undifferentiated ally either of progressive constitutionalism or, paradoxically, of its laissez-faire adversary.(6)

The standard story omits a third great constitutional vision: labor's constitution of freedom. In the early twentieth century, many American unionists poured their thoughts, energies, hopes, and sometimes their lives into the struggle for fundamental rights: the rights to organize, to assemble, to speak freely, and--above all--to strike. Unionists advanced their own interpretations of the Constitution, usually in opposition to those of the Supreme Court. Antistrike laws were said to violate the Thirteenth Amendment's prohibition against involuntary servitude, while antipicketing laws infringed the First Amendment freedoms of speech and assembly. Labor activists came to embrace a sweeping, if unsystematic, vision of labor's place in the constitutional order. This vision centered on the idea of "effective freedom," which encompassed the ability not only to influence the conditions of working life, but to do so consciously, in combination with one's coworkers, using forms of action that yield immediate, unambiguous evidence of personal and collective potency.(7) Because this vision was embedded in narratives of slavery, emancipation, and freedom, I call it labor's constitution of freedom.(8)

Unionists did not wait for judicial approval to put their constitutional vision into practice. Having declared laws unconstitutional, they endeavored to strike them down through noncompliance and direct action. By 1909, not only did the radical International Workers of the World (IWW) direct its members to "disobey and treat with contempt all judicial injunctions,"(9) but the normally staid American Federation of Labor (AFL) maintained that a worker confronted with an unconstitutional injunction had an imperative duty to "refuse obedience and to take whatever consequences may ensue."(10)

Unlike the right to picket, the right to strike posed squarely the question of labor's place in the constitutional order.(11) The treatment of labor as a commodity subject to the rules of the marketplace is a defining feature of capitalism.(12) The claim of a constitutional right to strike--a right to interdict the free competition of individuals in the buying and selling of labor power--obviously imperiled the ideology and practice of commodity labor. The right to strike could not be justified without addressing the question of labor liberty per se.

Unionists found constitutional support for collective labor liberty in the Thirteenth Amendment. In Bailey v. Alabama,(13) the Supreme Court had proclaimed that the purpose of the Amendment was "to make labor free by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit."(14) Workers argued that in a society where workers depended on employers for jobs, the only way to prevent employer coercion and control was through collective organization, including the right to strike. Economic, philosophical, and political justifications supported this core principle.(15) It was embodied in a vivid constitutional narrative that reflected the felt experience of union activists in emancipating themselves from unbridled employer domination through collective struggle and sacrifice.(16)

I propose to examine the struggle for labor's freedom constitution as one instance of a broader phenomenon: constitutional insurgency. By "constitutional insurgency" I mean a social movement that: (1) rejects current constitutional doctrine, but rather than repudiating the Constitution altogether, draws on it for inspiration and justification; (2) unabashedly confronts official legal institutions with an outsider perspective that is either absent from or marginalized in official constitutional discourse; and (3) goes outside the formally recognized channels of representative politics to exercise direct popular power, for example through extralegal assemblies, mass protests, strikes, and boycotts.

From the American revolution through the Virginia and Kentucky resolutions, the nullification movement, constitutional abolitionism, populism, the civil rights movement, and down to the recent rise of right-wing citizen "militias," constitutional insurgencies have exerted a pervasive influence on American constitutionalism. Until very recently, however, legal scholars have considered them exogenous to the field of legal studies. Everything about constitutional insurgency--legally untrained activists developing their own constitutional ideas, promoting them through extralegal channels, and acting in derogation of official law--seems antithetical to the professional culture of law.

In his pathbreaking article, Nomos and Narrative,(17) Robert Cover argued that the legal thought and practice of outsiders to the official court system can be just as important to the study of law as that of insiders. Cover distinguished jurisprudence, the analytic science of law, from jurisgenesis, the creation of legal meaning. In contrast to the technical language of jurisprudence, jurisgenesis thrives on narrative. Legal and popular culture are linked through storytelling. Cover argued that legal rules and principles take on meaning by virtue of their location in socially resonant narratives. Although elites might control the technical discourse of law, they do not and cannot control the generation of narratives about law. All Americans share a constitutional text, but we do not share an authoritative historical account. Even if we did, "we could not share the same account relating each of us as an individual to that history."(18) Considering the Reconstruction Amendments, for example, "[s]ome of us would claim Frederick Douglass as a father, some Abraham Lincoln, and some Jefferson Davis," with very different implications for interpretation.(19) Even after the Supreme Court has ruled, social movements and communities continue not only to generate their own interpretations, but also-if their commitment is strong-to live by them. Unofficial constitutional visions are thus worthy of study not only because they might become official, but also because they can shape the consciousness and action of adherents in the here and now.(20)

To capture the dynamics of jurisgenesis, it will be necessary to assemble information on the constitutional thought and action of all relevant constituencies ranging from local movement activists to the Justices of the United States Supreme Court. This information is readily available for judges, lawyers, and top movement officials--the leading characters in previous models of constitutional insurgency. It is far more difficult to find for the local activists who occupy center stage in jurisgenesis. Worse, most of the texts left by activists are painfully laconic. To draw out their constitutional significance requires a detailed examination of both the conditions and events that form their context.

This need for depth and detail dictates the methodology of the case study. Fortunately, there is an obvious choice for the case. In January of 1920, the Kansas state legislature enacted the Kansas Industrial Court Act, the most ambitious piece of American labor legislation prior to the Wagner Act. The Act prohibited strikes in key industries and established an Industrial Court to resolve the underlying disputes.(21) Although the Industrial Court ruled in favor of workers more often than not, ten thousand Kansas coal miners staged a four-month winter strike "against the political powers of the state of Kansas, monopoly, [and] the industrial court law."(22) In the course of the struggle, local union activists generated an extraordinarily rich collection of writings about the Act and the resistance movement. Leading national proponents of all three competing constitutional visions were drawn into the fray. Out of the conflict came not only the leading U.S. case on the constitutional right to strike, Dorchy v. Kansas,(23) but also the leading case on constitutional resistance prior to the civil rights movement, Howat v. Kansas.(24)

This Article proceeds as follows. Part I lays out the theoretical framework. It critiques the treatment of labor's freedom constitution under three previous models of constitutional insurgency, specifies the model of jurisgenesis, and floats hypotheses for the case study.

Part II recounts the enactment of the Kansas Industrial Court Act and introduces the consequent constitutional conflict. Instead of the two great constitutional visions of the standard story, we will see three: the laissez-faire constitution embraced by...