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Published online by Cambridge University Press: 16 December 2008
In a 1987 essay on labor and the American constitutional order, Leon Fink observed that, in “American labor history the law has yet to be fully explored.” Fink's observation is less true today than when he made it some ten years ago; indeed, even as the essay appeared, a number of historians, legal scholars, and political scientists were already beginning to construct new interpretations of American labor history by focusing on the complex and often decisive impact of the law and legal discourse on labor strategy, politics, and ideology. Although Fink's wide-ranging essay surveyed labor's encounters with the Constitution from the antebellum period to the post-World War II era, he concentrated on the late nineteenth and early twentieth centuries, a period in which organized labor moved away from a broad politics of reform toward a more conservative, apolitical trade unionism. Fink notes that it was during this period of “‘exceptionalist’ drift” – when the developmental trajectory of the American labor movement be gan to diverge from its European counterparts – that “legal issues took on their most determining historical role.”
1. Fink, Leon, “Labor, Liberty, and the Law: Trade Unionism and the Problem of the American Constitutional Order,” Journal of American History 74 (12 1987): 907CrossRefGoogle Scholar.
2. Tomlins, Christopher, The Stale and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960 (New York: Cambridge University Press, 1985)Google Scholar. Although they appeared in book form only after Fink's essay, preliminary statements of the following works had already appeared as articles: Forbath, William, Law and the Shaping of the Labor Movement (Cambridge, Mass.: Harvard University Press, 1991)Google Scholar; Hattam, Victoria, Labor Visions and State Power: The Origins of Business Unionism in the United States (Princeton, N.J.: Princeton University Press, 1993)Google Scholar; and Orren, Karen, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (New York: Cambridge University Press, 1991)Google Scholar.
3. Fink, “Labor, Liberty, and the Law,” 907.
4. Tomlins, State and the Unions, 60–61, 74–76.
5. Fink, “Labor, Liberty, and the Law,” 914.
6. Forbath, Law, quotes at 2, fn. 3, 7–8; id. “Courts, Constitutions, and Labor Politics in England and America,” Law and Social Inquiry 16 (Winter 1991): 1–34, esp. 19. Tomlins, Fink, and Hattam each claim that labor's encounters with the law contributed to the erosion of labor's “republican” ideology, but Forbath is the most explicit in arguing that these encounters led to labor's paradigmatic shift from a “republican” to a “liberal” ideology. This argument rests on the assumption that labor embraced a liberal language of the law because liberalism was the language of the courts. However in California, as I argue elsewhere, labor embraced a “liberal” language not because it was the language of the courts, but to strategically highlight what it considered to be the “ancient” and pre-liberal foundations of “judge-made law.” Labor leaders in California would have agreed with Karen Orren's claim that, when it came to labor law, judges spoke not a liberal language, but a feudal language of master and servant law. Labor leaders in California could, and did, make both liberal- and republican-sounding arguments when highlighting judicial feudalism. See Thomas Clark, “The Limits of Liberty: Courts, Police, and Labor Unrest in California, 1890–1926” (Ph.D. dissertation, UCLA, 1994), passim. A revised version of this dissertation, currently under review at University of California Press, addresses this issue more directly. On the persistence of feudalism in labor relations law, see Orren, Belated Feudalism, passim. On the problems with extending the “liberalism vs. republicanism” debate into the nineteenth century, see Rodgers, Daniel, “Republicanism: The Career of a Concept,” Journal of American History 79 (06 1992): 11–38Google Scholar. For background on the liberalism-republicanism debate see the several essays in Appleby, Joyce, Liberalism and Republicanism in the Historical Imagination (Cambridge, Mass.: Harvard University Press, 1992)Google Scholar.
7. Clark, “The Limits of Liberty.”
8. Perhaps the surest indication of the influence of this recent attention to the law in American labor history is the extent to which it informs the standard surveys that we use in our classrooms. In the most recent edition of Industrialism and the American Worker, 1865–1920 – a contribution to the popular Harlan-Davidson series – Melvyn Duboksy has added a section entitled “Labor Confronts the Law,” which draws heavily on the work of Hattam and Forbath. Placing this section just before a discussion of the shift from the reform unionism of the Knights of Labor to the trade unionism of the AFL, Dubofsky links legal hostility to the turn-of-the-century transformation of the American labor movement. As Dubofsky concisely summarizes in the book's bibliographic essay, the recent works on labor and the law suggest “that a hostile judiciary and its antiunion rulings prompted the AFL and its affiliated unions to turn away from political actions, adopt ‘voluntarism’ as the ideology of trade unionism, and practice ‘business unionism.’ ” Dubofsky, , Industrialism and the American Worker, 3d. (Arlington Heights: Harlan-Davidson, 1996), 174Google Scholar.
9. Cross, Ira, A History of the Labor Movement in California (Berkeley: University of California Press, 1935)Google Scholar.
10. California Bureau of Labor Statistics [hereafter CBLS], Biennial Reportf[s], 1900–1912 (Sacramento, 1901–1913)Google Scholar; on strike success rates through 1905, see esp. CBLS, Twelfth Biennial Report (1905–1906), 184–211; United States. Commissioner of Labor, Twenty First Annual Report of the Commissioner of Labor: Strikes and Lockouts (Washington, D.C., 1907), passimGoogle Scholar.
11. For two popular accounts, see Baker, Ray Stannard, “A Corner in Labor: What's Happening in San Francisco Where Labor Holds Undisputed Sway,” McClures Magazine 22 (02 1904): 366–78Google Scholar; Fitch, John, “Los Angeles: A Militant Anti-Union Citadel,” Survey 29 (1913): 607–17Google Scholar. See also, “General Otis: The Storm Center of the Unpacific Coast,” Current Literature 52 (January 1912): 35–38; Palmer, Frederick, “Otistown of the Open Shop,” Hampton's Magazine 26 (01 1911): 29–44Google Scholar. On the fear that the weakness of labor in Los Angeles threatened labor's strength elsewhere in California and the West, see American Federation of Labor, Proceedings of the … Annual Convention (1903), 72–73; id. (1904), 107–8; id., (1907), 99, 196, 321–22; id. (1908), 98–99; California Federation of Labor, Proceedings of the Eighth Annual Convention [hereafter, CFI. Proceedings] (1909), 15, 37.
12. Kazin, Michael, “The ‘Great Exception’ Revisited: Organized Labor and Politics in San Francisco and Los Angeles, 1870–1940,” Pacific Historical Review (08 1986): 371–402Google Scholar, quote at 378 (original emphasis).
13. Kazin, The “‘Great Exception’ Revisited,” 376. See also, Kazin, , Barons of Labor: The San Francisco Building Trades and Union Power in the Progressive Era (Urbana: University of Illinois Press, 1987)Google Scholar, on the urban political activism of San Francisco's powerful Building Trades unions.
14. San Francisco Examiner, July 15–19, 23–28, 30, August 1, 6, 1901; Coast Seamen's Journal, July 24, 31, August 7, 1901; Organized Labor, August 10, 1901; Chronicle, July 24, 30, 1901; Tygiel, Jules, “Workingmen in San Francisco, 1870–1901” (Ph.D. dissertation, UCLA, 1977)Google Scholar; Knight, Robert, Industrial Relations in the San Francisco Bay Area, 1900–1918 (Berkeley: University of California Press, 1960)Google Scholar; Clark, “Limits of Liberty,” 283–85.
15. Chronicle, July 23–28, 1901; Examiner, July 23, 28–August 1, 1901; Clark, “Limits of Liberty,” 285–91.
16. On the “unusual calm” see all daily papers from August 2–15, 1901, but esp. Chronicle, July 31, August 3, 5, 9, 10, 12, 13, 15, 1901; Bulletin, August 4, 7, 9, 10, 1901. Even the conservative business weekly reported that violence was insignificant, Argonaut, August 12, 19, 26, 1901; on the “union patrols” see Call, August 1–3, 8, 1901; Bulletin, August 8–10, 1901; Chronicle, August 1, 1901; Coast Seamen's Journal, August 7, 1901.
17. The Examiner printed labor's complaints on an almost daily basis throughout the strike; the most concise summary of these grievances appeared in the Coast Seamen's Journal, August 7, 21, 1901.
18. Examiner, August 10, 1901; Chronicle, August 10, 1901; Call, August 10–11, 1901; Bulletin, August 14, 1901; Argonaut, August 19, 1901.
19. Coast Seamen's Journal, August 7, 21, 1901; Examiner, August 11–14, 1901; Chronicle, August 14, 1901; Call, August 14–15, 1901; Argonaut, August 12, 19, 1901; Bulletin, August 14, 1901.
20. Examiner, August 15, 1901; Clark, “Limits of Liberty,” 301–2. Rebecca Reed, “Private Employees/Public Badges: ‘Additional Patrolman’ in the Policing of Detroit” (unpublished paper presented to the Social Science History Association, 1986). On the fiscal conservatism of urban officials in San Francisco as clsewhere, see Terrence McDonald, The Parameters of Urban Fiscal Policy: Socioeconomic Change and Political Culture in San Francisco, 1860–1906 (Berkeley: University of California Press, 1987), passim.
21. “Charter of the City and County of San Francisco” (1898), sect. 4, ch. 3, art. VIII, in San Francisco Charters File, Bancroft Library, University of California, Berkeley. See also Examiner, August 12, 15, 1901.
22. On Board of Supervisors hearings and actions, see Clark, “Limits of Liberty,” 313–20; Coast Seamen's Journal, August 21, 28, September 18, 1901; Examiner, August 20–27, September 4–12, 1901; Chronicle, August 23, September 12–13, 1901; Argonaut, August 26, September 9, 16, 1901.
23. Examiner, July 7, August 7, 28, September 26, October 2, 1901; Call, September 4, 6, 1901; Chronicle, July 27, 1901; Coast Seamen's Journal, July 31, October 30, 1901.
24. Clark, , “Limits of Liberty,” 323–29; Chronicle, September 2, 11, 14, 15, 17–21, 1901Google Scholar; Argonaut, September 9, 16, 30, 1901. Around mid-September some businessmen talked of starting a vigilante committee if Phelan did not step up policing or call upon the state militia. See Call, September 18, 1901; Chronicle, September 21, 25–28, 1901. However, not all businessmen thought this a good idea; see the Argonaut's opposition, September 30, 1901.
25. Clark, , “Limits of Liberty,” 314f.; Walton Bean, Boss Reuf's San Francisco: The Story of the Union Labor Party, Big Business, and the Graft Prosecutions (Berkeley: University of California, 1952), 20Google Scholar. On the Union Labor Party platform, see Examiner, September 8, 1901. On urban reform politics in San Francisco see Cherny, Robert and Issel, William, San Francisco, 1897–1932: Power, Politics, and Urban Development (Berkeley: University of California, 1986), chap. 6Google Scholar; Mowry, George, The California Progressives (Berkeley: University of California Press, 1951), chap. 2Google Scholar.
26. Examiner, July 2, 15, 1901; Coast Seamen's Journal, July 10, 1901; Bulletin, October 18, 1901.
27. Examiner, July 28, August 12, 18, 21, September 4, 1901.
28. Call, September 4, 6, 1901; Examiner, July 7, 27, August 7, 15, 28, September 26, 1901; Coast Seamen's Journal, July 31, October 30, 1901; Chronicle, July 27, 1901.
29. Coast Seamen's Journal, September 11, 1901.
30. Ibid., October 30, 1901; Bulletin, October 18, 1901; Examiner, October 28–29, 1901.
31. On the close relationship between Phelan and the BTC's McCarthy, see Kazin, , Barons of Labor, 36–45; Issel, “Class and Ethnic Conflict in San Francisco Politics: The 1898 Charter Reform,” Labor History 18 (Summer 1977): 341–59Google Scholar.
32. Clark, “Limits of Liberty,” 349–51; Tygiel, , “Workingmen,” 369, table 7.1; id, “‘Where Unionism Holds Undisputed Sway’: A Reappraisal of San Francisco's Union Labor Party,” California History 62 (09 1983), 207CrossRefGoogle Scholar.
33. Eric, Steven, “The Development of Class and Ethnic Politics in San Francisco, 1870–1910: A Critique of the Pluralist Interpretation” (Ph.D. dissertation, UCIA, 1975)Google Scholar, 213; Tygiel, “‘Where Unionism Holds Undisputed Sway,’” 207.
34. Examiner, October 13, 1901; Organized Labor, November 9, 1901; Argonaut, November 11, 1901. Schmitz's conservatism, and the later charges of corruption, have prompted many historians to see the ULP as a party of opportunists, rather than a genuine working-class or labor party'. However, Jules Tygiel argues that whatever the merits of the ULP record and its leader-ship, most trade unionists and working-class voters saw the ULP as a party that served labor and working-class interests, and they voted accordingly. See Tygiel, “‘Where Unionism Holds Undisputed Sway,’” passim. The polarized voting behavior that Tygiel found in the ULP period (1901–1911) continued into the Progressive era. See Clark, Thomas, “Labor and Progressivism ‘South of the Slot’: The Voting Behavior of the San Francisco Working Class, 1912–1916,” California History 66 (09 1987); 197–207, 214–16CrossRefGoogle Scholar. On the restraint shown by subsequent mayoral administrations in San Francisco, see Clark, “Limits of Liberty,” chaps. 6–7, passim.
35. I discuss the policing of strikes in Los Angeles before 1910 at greater length in “Limits of Liberty,” 389–420. Zeehandelaar quote in “Testimony of F.J. Zeehandelaar,” United States Commission on Industrial Relations [hereafter USCIR], Final Report and Testimony, 6: 5496–98. See also Stimson, Grace, The Rise of the Labor Movement in Los Angelas (Berkeley: University of California, 1955)Google Scholar, for a general overview of Los Angeles labor during these years.
36. On labor and reform in California, see George Mowry, The California Progressives, chap. 2; Olin, Spencer, California's Prodigal Sons: Hiram Johnson and the Progressives, 1910–1917 (Berkeley: University of California, 1968)Google Scholar; Kazin, Barons of Labor, passim; Rogin, Michael, “Progressivism and the California Electorate,” Journal of American History 55 (09 1968): 297–314Google Scholar; Burki, Mary Ann Mason, “The California Progressives: Labor's Point of View,” Labor History 17 (Winter 1976): 24–37Google Scholar; and Clark, “Labor and Progressivism ‘South of the Slot.’”
37. On the reform movement in Los Angeles see Schiesl, Martin, “Progressive Reform in Los Angeles, 1901–1913,” California Historical Quarterly 54 (Spring 1975): 37–56Google Scholar. On labor and Alexander, see Citizen, March 5, December 3, 1909; Times, December 9, 1909. See also, Stimson, , Rise of the Labor Movement in Los Angeles (Berkeley: University of California Press, 1955), 323–25Google Scholar.
38. Clark, “Limits of Liberty,” 455–58; Citizen, June 3, 10, 17, August 12, 1910. On the role of San Francisco unions see General Campaign Strike Committee [GCSC], Final Report, 5, in “Los Angeles File,” San Francisco Labor Council Records [SFLC Records], Bancroft Library, University of California, Berkeley. See also Times, June 2–5, 18, 1910; Citizen, June 24, 1910.
39. Baker Iron Works v. Metal Trades Council et at., Case No. 75559, and Lewellyn v. Metal Trades Council, Case No. 75647, Los Angeles County Archives, Los Angeles Superior Court Building; Citizen, June 24, July 1, 1910. On Harriman's role, see “Testimony of Job Harriman,” USCIR, Final Report, 6:5796–98; Citizen, June 24, July 8, 1910. Harriman lists on six injunctions, omitting the Baker injunction. In addition, he claims that the injunctions were dismissed on various dates in August, 1910; this, however, is either an error on his part or a typographical error in the USCIR reports, for according to the casefiles in the County Archives, the Baker and Lewellyn injunctions were not formally ended until 1912.
40. “Testimony of Job Harriman,” USCIR, 6:5796–99; Citizen, June 3–July 8, 1907, June 24, 1910.
41. Times, July 2, 1910; Citizen, July 1, 8, 1910. Text of ordinance reproduced in “Testimony of Job Harriman,” USCIR, 6:5799.
42. “Testimony of Job Harriman” USCIR, 6:5795–800; Citizen, July 8, 22, 1910.
43. “Testimony of Job Harriman,” USCIR, 6:5797–802; GCSC, Final Report, 4–5; Citizen, April 14, 21, 1911.
44. Citizen, July 1, 8, 15, 1910.
45. Ibid., July 1, 1910.
46. Ibid., August 5, 1910; Stimson, Rise of the Labor Movement in Los Angeles, 346–47.
47. Times, July 2, 6–8, 15–18, 1910; see also, Citizen, August 5, 1910, for labor's rebuttal to the Times charge that the strike had been caused by “outside agitators.” On the tendency of judicial language to equate labor's form of economic and moral pressure with physical forms of coercion, intimidation, and violence, see Avery, Diane, “Images of Violence in Labor Jurisprudence: The Regulation of Picketing and Boycotts, 1894–1921,” Buffalo Law Review 37 (Winter 1988/1989): 1–117Google Scholar
48. Grave's letter to Times reprinted in Citizen, August 19, 1910.
49. The debate could be followed in the Los Angeles labor press throughout the strike, but see especially Citizen, June 3, 17, 24, July 1, 8, 22, 29, August 12, 19, 26–September 23, 1910. Quote from “Report of the Executive Council,” California Federation of Labor, Proceedings of the Annual Convention [hereafter CFL Proceedings], 1910, 53–54.
50. Citizen, July 22, September 23, 1910.
51. Ibid., April 22, 1910.
52. Adamic, Louis, Dynamite: The Story of Class Violence in America (New York: Viking Press, 1930)Google Scholar; Stimson, chap. 21.
53. CFL Proceedings, 1910, 14f.; Citizen, September 23, October 7, 14, 1910; Times, January 1, 1912.
54. “Report of the Vice President for District No. 1,” CFL Proceedings, 1911, 59.
55. Stimson, Rise of the Labor Movement in Los Angeles, 364; see also, “President's Report,” and “Report of the Committee on Reports of Officers,” in CFL Proceedings, 1911.
56. For the traditional view that the McNamara confessions cost Harriman the election, see Starr, Paul, Inventing the Dream: California Through the Progressive Era (New York: Oxford, 1985), 269Google Scholar; Bean, California, 287; Stimson, Rise of the Labor Movement in Los Angeles, 400–6 and chap. 21, passim.
57. On the Times shift from strongly opposing Alexander and the Good Government League in 1909 to strongly supporting them in 1911, compare the Times, October 24, November 27, 1909, with November 1, 1911. See also Citizen, December 8, 1911; Schiesl, “Progressive Reform,” 41–46; Mowry, The California Progressives, 46–47, 50–52.
58. On the claim that women voters contributed to Harriman's defeat, see Kraft, James, “The Fall of Job Harriman's Socialist Party: Violence, Gender, and Politics in Los Angeles, 1911,” Southern California Quarterly (Spring 1988): 50Google Scholar; Citizen, December 8, 1911.
59. Forbath, Law, 7–8, 128–35, 171. Forbath recognizes that liberal legal discourse was “plural and open-textured enough [to justify] broad based collective action … and even defiance of courts” (171). But he still believes that republicanism provided a more radical critique and a more likely vehicle of social transformation.
60. See, for example, Klare, Karl, “Labor Law as Ideology: Toward a New Historiography of Collective Bargaining Law,” Industrial Relations Law Journal 4 (Fall 1981): 450–482Google Scholar; and Holger, Raymond, “Labor History and Critical Labor Law,” Labor History 30 (Spring 1989): 165–192Google Scholar. For a critique of Dawley's view of politics, see Laurie, Bruce, Artisan into Worker: Labor in Nineteenth Century America (New York: Noonday Press, 1989), 8fGoogle Scholar.
61. On the power of “rights consciousness” in a variety of political and social movements, see the several essays in a special edition of Journal of American History 74 (December 1987) commemorating the bicentennial of the Constitution. As David Thelan and Hendrik Hartog note in their respective introductory and concluding essays, the several articles showed that the appeal to rights could have both “limiting and emancipatory consequences.” Thelan, David, “Introduction,” Journal of American History 74 (12 1987): 797Google Scholar; Hartog, Hendrik, “The Constitution of Aspiration and the ‘Rights that Belong to all of Us,’” Journal of American History 74 (12 1987): 1013–34Google Scholar.
62. Oestreicher, Richard, “Urban Working Class Political Behavior and Theories of American Electoral Politics, 1870–1940,” Journal of American History 74 (03 1988): 1257–86Google Scholar. This essay does not try to explain labor's failure to sustain these episodic political challenges; however, a number of historians have pointed to the widespread obstacles to labor-based, independent political action. The most convincing studies stress the institutional constraints of the American party system and its tendency to mobilize voters along ethnic and regional lines; the timing of suffrage relative to economic development; and the fragmented nature of the American state. In addition to Oestreicher's essay, see Voss, Kim, “Disposition is Not Action: The Rise and Demise of the Knights of Labor,” Studies in American Political Development 6 (Fall 1992)Google Scholar; and the essays by Bridges, Amy, Shefter, Martin, and Katznelson, Ira, in Working Class Formation: Nineteenth Century Patterns in Western Europe and the United States, ed. Katznelson, and Zolberg, (Princeton, N.J., Princeton University Press, 1986)Google Scholar.
63. Greene, Julia, “‘The Strike at the Ballot Box’: The American Federation of Labor's Entrance into Election Politics, 1906–1909” Labor History 32 (Spring 1991): 165–92CrossRefGoogle Scholar.
64. The different political responses to legal hostility supports Greene's observation that “state and local leaders pursued a different political agenda than did their national counter-parts.” She adds that “the differing political approaches … often created … tensions at the heart of the AFL political program.” Greene, “‘Strike at the Ballot Box,’” 190–91.