Review of “If the Workers Took a Notion”: The Right to Strike and American Political Development by Josiah Bartlett Lambert (Cornell University Press, 2005)
Reviewed by Jeremy Brecher
During the 1970s, the Bureau of Labor Statistics recorded nearly 300 major work stoppages per year. By the 1990s, the number of major strikes had fallen to 35 per year, despite a far larger workforce. In 2003 it reached 14. Using such other measures as the total number of work stoppages, the number of workers involved, or the working time idle from strikes, the strike rate has decreased somewhere between 60% and 90% in the last three decades.
This unprecedented decline is not explained by a general pattern of “American exceptionalism”: Between 1946 and 1976 the US was third among 18 Western countries in strike activity. Nor is it explained through globalization or other historic changes affecting the industrialized world as a whole: Strikes have remained a vibrant vehicle for social struggles in many countries, as exemplified by the recent mass strikes in France. Nor is it explained by the normal variation of strikes with economic cycles: The change has now persisted through repeated cycles. Nor is it the result of the decline in “union density”: The strike rate for unionized workers has fallen comparably.
In “If the Workers Took a Notion”, Josiah Bartlett Lambert revisits the history of the right to strike to gain a new perspective on this situation.
While strikes are most often the province of labor historians and economists, Lambert is a political scientist with a strong historical interest but a focus on political development. He finds the principal cause of the falling rate of striking in the erosion of the right to strike, exemplified by the use of permanent replacement workers. He attributes this to labor law’s historic decision to treat the right to strike as a commercial matter, rather than as a question of fundamental Constitutional rights. He proposes to draw on the traditions of 18th and 19th century “labor republicanism” to reground the right to strike in the Constitution’s 13th Amendment -- the “Free Labor Amendment” that bans “involuntary servitude.”
The conventional story of the right to strike in the US – tracing to the work of John R. Commons and his associates – holds that from colonial times through much of the 19th century, strikes were banned as common law conspiracies. Judges gradually renounced the conspiracy doctrine and established the right to strike, a great advance in labor and human rights. Labor has by and large accepted the remaining limitations on that right.
Lambert tells a rather different story. While some strikes were suppressed under the conspiracy doctrine, a far greater number were conducted without judicial interference.
From the early days of the American republic, “labor leaders and social reformers supported a robust right to strike as essential for the citizenship of working Americans and for the defense of republican institutions.” They rejected the idea of labor as a commodity. They gave a labor twist to Jefferson’s idea that citizens must be economically independent to be politically independent: Full labor rights could make workers independent just as land ownership made the rural yeomanry independent. They emphasized that the right to strike was “one of the liberties that distinguished the free worker from the slave and bondsman,” an aspect of “free labor” that provided an alternative to “the growing concentrations of private power, the declining standing of the citizen-worker, and the wage system itself.”
The rise of what Lambert calls “the modern American liberal state” transformed the right to strike “from what had been a stalwart citizenship right, founded on civic republican principles, into a tentative and conditional commercial right based on modern liberal precepts.” The ideology of liberalism, whether in the form of industrial pluralism, Keynesianism, economic liberalism, or rights-based liberalism, provided only a highly restricted right to strike that has been repeatedly subject to further erosion.
Drawing on recent political science theory, Lambert explains this transformation both through the rise of liberalism as an ideology and through the emergence of a “new American state” in the post-Civil War era that asserted a concentration of sovereignty and a monopoly of force at the national level. “Mass strikes threatened the emerging American state’s claim to a monopoly of the legitimate use of force. Lacking the political, constitutional, and administrative resources to address the underlying causes of industrial unrest, federal and state officials by default relied on armed force to break strikes,” in the process destroying unions from the Knights of Labor to the IWW. Between 1877 and 1922 state and federal governments used armed soldiers in literally hundreds of strikes. He argues against some recent legal theorists that this suppression of the right to strike was spearheaded not just by the judiciary but by the entire political system. (18)
Workers’ defiance of strike suppression continued nonetheless. Indeed, the mass strikes of 1934, just before the passage of the Wagner Act, defiantly utilized illegal and even violent methods to counter violent repression by employers and government. Lambert writes that labor law evolved to allow a limited right to strike against individual employers “when it became apparent that the state’s use of force to break strikes was undermining the state’s legitimacy, and when state officials realized that a limited right to strike would support the state’s interest in industrial recovery.” But the right to strike was treated both by law and by “pure-and-simple trade unionism” as a commercial right rather than a fundamental Constitutional one.
As a result, the right to strike has been highly circumscribed.
“Wage earners have the right to strike, but not during the term of their contract. Employees are free to participate in a work stoppage, but only over issues of wages and working conditions. Job holders may engage in concerted activities, but not against someone else’s employer. Working men and women may stop production, but they may not strike for political purposes. They may refuse to work, but not if it disrupts essential services. Workers may strike, but they may not interfere with strike breakers.”
The right of employers to hire permanent replacement workers has long been part of this situation. The absence of major use of permanent striker replacements from the 1940s through the 1970s was not the result either of law or of government policy but of the proven capacity of the labor movement and the working class to mobilize direct action by enraged workers and supporters to counter it. While the legality of permanent replacement workers is often blamed on passing comments in the Supreme Court’s Mackay decision, Lambert argues that it does not arise “from an offhand remark made in a moldy Supreme Court decision” but “from the NLRA itself, and especially from the 1947 amendments.”
The use of permanent replacement workers was legal, but virtually unknown, from the Wagner Act until Ronald Reagan’s mass firing of striking PATCO air controllers in 1981. Continental Airlines, Trans World Airlines, Eastern Airlines, Greyhound, International Paper Company, Caterpillar, Bridgestone Firestone, and many other corporations soon followed suit. Between 1985 and 1989, permanent replacement workers were used in one-fifth of all strikes; in 1989 35% of employers in major strikes announced that they planned to hire permanent replacements.
The use of permanent replacement workers has significantly reduced labor’s bargaining power in strikes. But it doesn’t explain the decline in the incidence of strikes, the greatest part of which had occurred before the PATCO strike. Lambert sees it rather as part and parcel of the “slow deterioration in the right to strike.”
Lambert echoes Harvard political scientist Michael Sandel’s call for a revival of the civic republican tradition in American politics. Sandel has written, “The republican tradition, with its emphasis on community and self-government, may offer a corrective to our impoverished civic life.” Lambert proposes to reground the right to strike in the dialogue of “civic republicanism.” The right to strike should be regarded as a fundamental aspect of “labor liberty,” which in turn is essential for “sustaining citizenship and civil society.” This would “ground the defense of the right to strike in a traditional American political discourse” rather than a “European-style social democratic discourse” that “remains mostly foreign to American political life.”
More specifically, Lambert revives the critique of treating labor as a commodity and grounding labor rights in the Commerce Clause of the Constitution. He proposes to rehabilitate the traditional labor position that instead bases the right to strike on the 13th Amendment’s prohibition on “involuntary servitude.” Such an approach might fit in well with the current trend of the labor movement to ground both international and domestic labor rights in the vast expansion of international human rights – including labor rights – that has occurred over the past half-century.
Unfortunately, as Lambert acknowledges, the U.S. Supreme Court has been consistently hostile to claims that the 13th amendment guarantees the right to strike. But he argues, drawing on the important work of legal historian James Gray Pope, that until the passage of the Labor Management Relations (Taft-Hartley) Act in 1947, “labor unionists insisted that their rights to organize and to strike were constitutional rights resting upon this amendment.”
They may have insisted that the Constitution guaranteed the right to strike, but that didn’t stop the courts from throwing them in jail for exercising it. Indeed, the function of labor’s argument was not so much to persuade the courts as to justify for themselves and the public the claim that the right to strike was a basic Constitutional right. They conducted what Pope characterizes as a “constitutional insurgency,” in which a social movement “rejects current constitutional doctrine, but rather than repudiating the Constitution altogether, draws on it for inspiration and justification”; “unabashedly confronts official legal institutions with an outsider perspective”; and “goes outside the formally recognized channels of representative politics to exercise direct popular power, for example through extralegal assemblies, mass protests, strikes, and boycotts.”
Lambert suggests that the Supreme Court may change its mind in the future as it has done in the past. But he does not suggest what historical process or agency might lead it to reconsider its basic approach to the right to strike. Pope’s recent research indicates that the Supreme Court’s decision to declare the Wagner Act constitutional can only be explained as a consequence of the auto plant sit-downs that were occurring even as the court met. Likewise today, a “constitutional insurgency” is likely to be necessary in order to reassert a meaningful right to strike – or indeed any meaningful future for the labor movement.
While Lambert’s orientation as a political scientist brings fresh air to musty discussions among historians and economists, his useful emphasis on the state tends to downplay a more traditional emphasis on the role of capital, corporations, and classes. Changes in economic structure and the strategies of capitalists do not appear on his list of dimensions necessary to understand “the role of the state in the transformation of the right to strike.” The same gap is reflected in the argument that, in the New Deal, “the collective bargaining model became the dominant framework for the right to strike . . . because of the interests and the limits of the New Deal American state.” Surely it also had something to do with the interests of a sector of capitalists, who, as The Rise and Fall of the New Deal Order demonstrates, largely shaped the New Deal. For the same reason, it is hard to imagine a reassertion today of the right to strike, however well grounded in “traditional American political discourse,” not meeting fierce opposition from corporations and the owners of capital.
The character of the economy, the state, and even state power is undoubtedly changing again today, although to what remains unclear in the era of globalization, international trade and financial institutions, corporate restructuring, a new imperialism, and rapidly evolving international human rights. Organized labor – and more broadly the working class – needs a radical rethink of the entire current basis of the labor movement, emphatically including the right to strike. “If the Workers Took a Notion” makes a great contribution by showing that such a rethink must go beyond the underlying assumptions of established labor law – and by showing that there are important roots in American labor tradition that such a rethink can draw on.
Recent Comments