[Pictured: Christian Smalls has become an instrumental part of a nationwide labor resurgence in the United States, heading up union efforts at Amazon]
By Noah Streng
The state of union organizing in America is intimately tied to the legal structures governing labor. Court rulings during the late-19th and early-20th century, for example, created a semi-outlaw status for unions and their activities. Nearly every time unions tried to get the political system to pass pro-labor legislation, their efforts were overturned by a reactionary Supreme Court that had the final say over labor law. A prime example of this was Lochner v. New York (1905).
In the case, the Supreme Court overturned a New York law that prevented bakers from working more than 10 hours per day, citing liberty of contract guaranteed by the 14th Amendment. Unions had fought hard to pass this and other protections for workers in the New York legislature. But, despite the public’s mandate via their elected representatives, the Supreme Court overruled them in favor of private property rights.
Cases like Lochmer were common in postbellum labor relations. The outsized influence of the judiciary left elected legislatures with little say over American labor law. Many unions consequently lost faith in the potential for winning reforms through the ballot box and adopted an anti-statist approach to labor organizing. These unions had never experienced a state that worked on behalf of the working class, so it was hard for them to envision one.
This disillusionment gave rise to the anarcho-syndicalist Industrial Workers of the World (IWW) and voluntarist American Federation of Labor (AFL). Both prioritized grassroots labor action over state intervention. But, despite this commonality, the two unions practiced very different kinds of anti-statism.
The AFL focused on upholding liberty of contract by fighting to remove the government from labor relations entirely. When the AFL participated in elections and legislative advocacy, it was typically to preempt judicial intervention in labor disputes. Meanwhile, the IWW sought to unite laborers across race and gender lines to overthrow capitalism. In their organizing, the IWW gained significant traction — especially among unskilled workers, immigrants, people of color, and women. Unlike the AFL, which organized along craft lines, the IWW ran industrial unions that united all workers in a given shop.
Despite early momentum, however, many judicial rulings stifled the IWW’s ability to organize across racial lines. In Hodges v. United States (1906), for example, the Supreme Court officially stripped black workers of equal labor rights. This — in tandem with other hostile decisions — divided the American working class, thereby frustrating the IWW’s universalist strategy.
The environment for labor improved significantly following the passage of the National Labor Relations Act (NLRA), which guaranteed many American workers the right to organize unions, engage in collective bargaining, and partake in concerted union activity such as strikes. The NLRA did this by expanding executive power over the judiciary, transferring power from courts in labor law cases to the National Labor Relations Board. This paved the way for much of the pro-labor legislation in the New Deal, which the Supreme Court almost certainly would’ve struck down had it been able. The NLRA thus redefined what was politically possible for unions. Now, they could plausibly build worker power through the organs of the state.
Nevertheless, the NLRA had its flaws. Following the precedent set by Hodges and other discriminatory cases, the bill excluded domestic, agricultural, incarcerated, and sex workers from its labor protections. This would be hard to reconcile if we interpret the NLRA as something intended to advance working-class liberation. But that arguably wasn’t its intention at all.
Indeed, the NLRA’s legality was based on the federal government’s right to regulate interstate commerce. The bill provided concessions to labor in order to achieve “labor peace” and ensure the stability of the capitalist economy. Nevertheless, the NLRA — coupled with other pieces of legislation like the Norris-La Guardia Act — was undoubtedly beneficial to workers. By shifting power over labor relations from courts to the administrative state, the NLRA opened new opportunities for radical pro-union reforms.
Despite gains in the previous century, however, we still find ourselves in an era where the federal government and judiciary are aligned with the interests of capital. As both continue to chip away at the progress made by the NLRA, organized labor in the United States needs to develop new strategies for our current context. That includes finding ways to work around — or, preferably, reverse — legal restrictions on union activities as enshrined by, for example, the Taft-Hartley Act and infamous Janus vs. AFSCME (2018) Supreme Court decision. Just as union leaders in the past had to adapt to rapidly changing rules governing labor, leaders today must strategize to meet the moment and revitalize class struggle in America.
One way to do this would be through rekindling the socialist labor movement in the United States. Organizations like the Democratic Socialists of America have already begun doing so by raising over $100,000 for strike funds, engaging in solidarity actions, and directly organizing workers into unions across the country. Labor is at its strongest when grassroots, militant, rank-and-file-led unions organize to radically change society. Part of this strategy should include capturing state power and wielding it to redefine labor law, empowering workers in their fight against the owning class.
Noah Streng is a member of River Valley DSA’s steering committee and a graduate student at the University of Massachusetts Amherst Labor Center.
