Labor's Constitution of Freedom

By Pope, James Gray | The Yale Law Journal, January 1997 | Go to article overview

Labor's Constitution of Freedom

Pope, James Gray, The Yale Law Journal

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Labor's Constitution of Freedom


Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

    New feature

    It is estimated that 1 in 10 people have dyslexia, and in an effort to make Questia easier to use for those people, we have added a new choice of font to the Reader. That font is called OpenDyslexic, and has been designed to help with some of the symptoms of dyslexia. For more information on this font, please visit

    To use OpenDyslexic, choose it from the Typeface list in Font settings.

    OK, got it!

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search


    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.