John R. Commons' Successful Plan for Constitutional, Effective Labor Legislation
Gonce, Richard A., Journal of Economic Issues
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. …