The Unfolding of American Labor Law: Judges, Workers, and Public Policy across Two Political Generations, 1790-1850

The Unfolding of American Labor Law: Judges, Workers, and Public Policy across Two Political Generations, 1790-1850

The Unfolding of American Labor Law: Judges, Workers, and Public Policy across Two Political Generations, 1790-1850

The Unfolding of American Labor Law: Judges, Workers, and Public Policy across Two Political Generations, 1790-1850

Excerpt

American patriots of the revolutionary generation were quick to equate England’s control over the colonists’ lives with the corrupt practices of England’s class-based society. They contrasted a fallen monarchy with a virtuous American citizenry. The social hierarchies found at home and validated by the English common law also offended Americans. Aided by the growth of constitutional ideas and commercialism, orientations grounded in the broad principles of contract emerged and grew in the years following the Revolution. Free to enter into new social and business relationships, the average adult white worker was unhindered by the restrictive English common law.

It is my contention that the English common law did not define American labor law between the Revolution and the midnineteenth century. Instead, American labor law was shaped by the new social realities and changing circumstances of American life. During this period, conditions in the United States allowed the traditions of the English common law to erode and permitted a body of American labor law to emerge. Two significant events were pivotal in this breakaway from a received tradition of the common law and the emergence of American labor law: American independence, with its republicanizing tendencies, and the rise of a powerful democratic ideology during the late 1820s and 1830s. Both events would profoundly influence the development of a new American legal tradition governing labor relations.

Scholars such as Christopher L. Tomlins and Karen Orren frame the debate about law and labor in the nineteenth century by advancing two arguments. First, they maintain that the body of American law governing labor relations in the early republic was steeped in the social hierarchies and status designations supplied by the English common law. Second, they argue that the legal terminology used by judges during this period expressed a fundamental inequality between those who hired and those who worked.

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