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. …