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“To Change the Fundamental Law of the State”: Protective Labor Provisions in U.S. Constitutions

Published online by Cambridge University Press:  12 February 2010

Emily Zackin
Emily Zackin*
Affiliation:
Princeton University
*
ezackin@princeton.edu
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Abstract

As the United States industrialized, its state constitutions began to include protections for laborers. In this article, I describe the origins of these constitutional provisions and ask why labor organizations and other reformers pursued their inclusion in state constitutions. I argue that they saw state constitutions as a vehicle to prompt reluctant legislatures to pass protective statutes, to entrench existing protections against future legislatures, to safeguard labor legislation from constitutional challenges in state courts, and to facilitate further union organizing. Labor activism in this arena is particularly interesting in light of the literature on constitutional change, which contends that constitutional development is a tool through which actors attempt to usher courts into political conflicts; in contrast, I will argue that unions turned to constitutional change in large part to exclude courts from policymaking. Further, the union activism on behalf of constitutional change serves as a challenge to the prominent view among many scholars of American political development and law that judicial hostility to worker rights and union organizing discouraged unions from demanding state protection or institutionalizing their demands through law.

Type
Research Article
Information
Studies in American Political Development , Volume 24 , Issue 1 , April 2010 , pp. 1 - 23
Copyright
Copyright © Cambridge University Press 2010

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12. My goal is not to explain the emergence or nonemergence of a particular type of provision in a particular state's constitution. Instead, I am interested in why such protections appealed to the labor advocates that promoted them. Consequently, I do not conduct a cross-state analysis to predict the existence or nonexistence of labor protections. However, the relevant explanatory variables likely include the relative strength of labor and business groups within the electorate, the level of the state court's hostility to protective labor legislation, as well as the ease with which a state's constitution can be amended. A state with a constitution that is difficult to change, either because of the formal amendment procedure or informal norms, is probably unlikely to include labor provisions, regardless of labor strength or hostile courts. Similarly, a state with a friendly legislature and a friendly court might not acquire labor provisions because its activists felt so secure in the achievement of their policy agenda that they did not need to pursue constitutional change. Finally, states in which labor was too weak to pass any protective legislation to begin with would be unlikely to have the political clout to alter the constitution.

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21. Rogers Smith has famously demonstrated the influence of multiple ideological traditions in American political thought. In addition to liberalism, these include ascriptive hierarchical thinking (or racism) and republicanism. Smith, Rogers M., Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven, CT; London: Yale University Press, 1997)Google Scholar. Sean Wilentz has documented the strong influence of republican ideology on American Labor. See Wilentz, Sean, Chants Democratic: New York City & the Rise of the American Working Class, 1788–1850 (New York: Oxford University Press, 1984)Google Scholar. Karen Orren has argued that pre-New Deal American labor law was actually feudal, rather than liberal. See Orren, Belated Feudalism. Ruth O'Brien has argued for the importance, not of liberal individualism, in shaping New Deal labor policies, but instead of the corporatist theory of responsible unionism. See O'Brien, Workers' Paradox.

22. Forbath, Law and the Shaping of the American Labor Movement.

23. In making these liberal, antistatist arguments, the AFL invoked the federal Constitution. James Pope demonstrates that the Thirteenth Amendment played a large role in labor's rhetoric. According to Pope, the core of Labor's argument was that the Thirteenth Amendment should be interpreted as a fundamental guarantee of labor rights. They argued that the Constitution's prohibition on enslavement made it illegitimate to outlaw labor strikes because, without the ability to strike, laborers could not consider themselves truly free. See Pope, James Gray, “Labor's Constitution of Freedom,” Yale Law Journal 106, no. 4 (1997)CrossRefGoogle Scholar. Forbath notes that labor's Thirteenth Amendment arguments were often entwined with First Amendment arguments. See Forbath, Law and the Shaping of the American Labor Movement, 139. When labor was not allowed to stage meetings, parades, peaceful protests, or strikes, the AFL also invoked the First Amendment, arguing that its activism was protected by the constitutional guarantees of freedom of speech and assembly.

24. Forbath, Law and the Shaping of the American Labor Movement, 130.

25. Hattam, Labor Visions and State Power, 9.

26. Ibid., 206.

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29. The Republicans, for example, only offered the tariff (already a part of their political agenda), which they argued would protect American labor from foreign competition. Similarly, Democrats responded to labor predominantly by arguing that their free silver policy was a solution to unemployment. See Bensel, The Political Economy of American Industrialization, 1877–1900, 148.

30. Clemens, The People's Lobby, 44.

31. Ibid., 68.

32. United States Industrial Commission et al. , “Report of the Industrial Commission on Labor Legislation Including Recommendations as to General Legislation, and Digests of the Laws of the States and Territories Relating to Labor Generally, to Convict Labor, and to Mine Labor” (Washington, DC: GPO, 1900)Google Scholar.

33. John Joseph Wallis, “NBER/University of Maryland State Constitution Project,” (2007).

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35. Although many state constitutions required or enabled legislatures to regulate railroads, banks, and other corporations, I excluded these provisions if they did not specifically address employment. I also excluded child labor provisions, provisions that address the right to work or the right to unionize, as well as provisions that merely required the establishment of a labor commission or created a new office. While the creation of bureaus of labor and offices of inspectors were often the first steps to the passage of regulation, provisions that merely created these institutions but did not require or even empower them to regulate employment seemed significantly different from constitutionalizing protections themselves. Because the protections to work and unionize are often aimed at stopping government from interfering with labor relations, I have not included them in this list of protections that government must actively provide. I excluded child labor from this analysis because of the widespread and nearly successful campaign to add an anti-child labor amendment to the federal Constitution. It seems likely that because of this federal campaign, a different political dynamic was at work in the inclusion of these provisions in state constitutions.

36. “The Right to Live,” Toledo Union Leader, August 9, 1912.

37. As cited in Dinan, The American State Constitutional Tradition, 190–91.

38. A delegate to the Nebraska constitutional convention even explained his use of permissive language: “It seems to me that the decision of our court in Lowe v. Rees Printing Company makes this word ‘may’ particularly applicable. That was law which intended to fix the hours of labor and compensation. That is just what this proposal opens the way for… . The word ‘may’ thus becomes co-ordinate with those other constitutional inhibitions.” Nebraska Constitutional Convention, Journal of the Nebraska Constitutional Convention: Convened in Lincoln, December 2, 1919, 2 vols. (Lincoln, NE: The Kline publishing Co., 1921)Google Scholar. Also cited and discussed in Dinan, John J., “Framing a ‘People's Government’: State Constitution-Making in the Progressive Era,” Rutgers Law Journal 30 (1999)Google Scholar.

39. The labor organizations and progressive reformers who were primarily concerned with the welfare of working women tended to support protective legislation and constitutional amendments. For instance, in her capacity as Illinois chief factory inspector, Florence Kelley bemoaned the fact that the state supreme court had based its decision to nullify an eight-hour law in part on the federal constitution. Kelley explained in her third annual report that, if the court had only based its decision on the state constitution, that constitution could have been altered to allow for a reenactment of the law. See page 238 of Sklar, Kathryn Kish, Florence Kelley and the Nation's Work: The Rise of Women's Political Culture, 1830–1900 (New Haven, CT: Yale University Press, 1995)Google Scholar. Similarly, the Women's Trade Union League (WTUL) was an early advocate of protective legislation and broadly supportive of the state constitutional amendments. For instance,the WTUL's official journal, Life and Labor, discussed a Wisconsin court's nullification of a workmen's compensation law, predicting “there will also be a constitutional amendment which will guarantee the enforcement of these humanitarian laws as well as a curtailment of the prerogatives of the supreme court judges.” See “Wisconsin Compensation Law,” Life and Labor 4, no. 2 (1914). A Los Angeles branch of the WTUL also worked energetically to secure a constitutional amendment to California's constitution in the hopes that the amendment would protect existing minimum wage laws for women. See Katz, Sherry, “Socialist Women and Progressive Reform,” in California Progressivism Revisited, ed. Deverell, William Francis and Sitton, Tom (Berkeley: University of California Press, 1994)Google Scholar.

40. For an argument about the sporadic involvement of the general public in federal constitutional change, see Ackerman, Bruce A., We the People: Transformations, vol. 2 (Cambridge, MA: Belknap Press of Harvard University Press, 1998)Google Scholar.

41. For a detailed description of the temperance movement's attempts to change state constitutions see Szymanski, Ann-Marie E., Pathways to Prohibition: Radicals, Moderates, and Social Movement Outcomes (Durham, NC: Duke University Press, 2003)CrossRefGoogle Scholar. See also Buck, Solon J., The Granger Movement: A Study of Agricultural Organization and Its Political, Economic and Social Manifestations, 1870–1880, vol. 19, Harvard Historical Studies (Cambridge, MA: Harvard University Press, 1913)Google Scholar. Buck describes the Grangers' attempts to regulate railroads in Illinois through a constitutional convention on page 127.

42. State constitutional revision became commonplace in the nineteenth century: “From 1861 to 1900, twenty states revised their constitutions, some several times, adopting forty-five new constitutions in all. Even this figure underestimates the level of state constitution-making; for voters also rejected several proposed constitutions, including six from 1877 to 1887. Of those states that joined the Union from 1800 to 1850, only two had not revised their constitutions by century's end; altogether, ninety-four state constitutions were adopted during the nineteenth century” (Tarr, Understanding State Constitutions, 94).

43. Bridges, “Managing the Periphery in the Gilded Age,” 42.

44. Anthony McGinnis, “The Influence of Organized Labor on the Making of the Arizona Constitution” [dissertation] (University of Arizona, 1930)., quoting from Arizona Daily Star, July 8, 1910. p. 8.

45. Louisiana Constitutional Convention, Debates in the Convention for the Revision and Amendment of the Constitution of the State of Louisiana: Assembled at Liberty Hall, New Orleans, April 6, 1864 (New Orleans, LA: W.R. Fish, Printer to the Convention, 1864), 418Google Scholar.

46. McGinnis, “The Influence of Organized Labor on the Making of the Arizona Constitution,” 33.

47. Bryant, Keith L. Jr., “Labor in Politics: The Oklahoma State Federation of Labor During the Age of Reform,” Labor History 11, no. 3 (1970)CrossRefGoogle Scholar.

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50. “Labor Unionists Have Put Candidates in the Field,” Michigan Union Advocate, July 19, 1907.

51. “Workingmen and the Convention,” New York Times, October 24, 1893.

52. “Constitution Makers Finish Labors,” Toledo Union Leader, May 17, 1912.

53. “To Urge Constitution: Ohio Federation of Labor Plans Campaign for Adoption of Laws to Help Workers,” Toledo Union Leader, July 28, 1912.

54. For instance, the eight-hour amendment to Colorado's constitution received the support of both the state's major political parties in 1902, and passed the statewide referendum on ratification by a nearly three-to-one margin. See Wright, James Edward, The Politics of Populism: Dissent in Colorado, Yale Western Americana Series, vol. 25 (New Haven, CT: Yale University Press, 1974), 235Google Scholar.

55. For example, the Montana Federation of Labor promoted a 1936 constitutional amendment about hours regulation by contacting labor unions throughout the state, urging them to support the amendment, and publishing many editorials, which responded to the charges leveled against the amendment by its opponents. For the entire month of October, the Montana Labor News published the slogan “Vote for the Eight-Hour Amendment” on its front page, above the paper's nameplate. The paper also recounted the efforts of the state Federation of Labor as well as the state Mining Council of Montana, writing “The State Mining Council of Montana, which includes representatives of all mining and smelter organizations in the State of Montana, vigorously urged the necessity of the passage of the 8-Hour Amendment at its last meeting and notified the Central Labor Body of Butte of its action. The State Mining Council also praised the efforts of the Montana State Federation of Labor in arousing the people to the need of passing this proposed amendment. Nothing that has come up before the people in recent years, according to the report of the Council, is so vital to their interest as the passage of this 8-hour law” (Montana Labor News, Oct. 8, 1936, 1). After the amendment passed, the Montana Labor News ran a long column thanking those labor advocates and union leaders who “fought for the amendment and spent their time and money” (Montana Labor News, Nov. 12, 1936, 1).

56. See, for example, Urofsky, Melvin, “State Courts and Protective Legislation During the Progressive Era: A Reevaluation,” The Journal of American History 72, no. 1 (1985)CrossRefGoogle Scholar.

57. As cited in Forbath, Law and the Shaping of the American Labor Movement. p. 41.

58. As William Ross describes, judicial rulings on labor questions also created a more general fervor for curbing the power of the courts, often through constitutional amendments that would allow for democratic recall of unpopular judges or the negation of their decision. See Ross, William G., A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton, NJ: Princeton University Press, 1994)Google Scholar. John Dinan identifies these protective labor provisions as part of the larger movement to use state constitutions in an effort to reign in courts. See Dinan, John J., “Court-Constraining Amendments and the State Constitutional Tradition,” Rutgers Law Journal 38, no. 4 (2007)Google Scholar. Douglas Reed also notes this phenomenon in Reed, “Popular Constitutionalism.”

59. Schattschneider, E. E., The Semisovereign People: A Realist's View of Democracy in America (Hinsdale, IL: Dryden Press, 1975)Google Scholar.

60. Groat, George, “The Eight Hour and Prevailing Rate Movement in New York State,” Political Science Quarterly 21, no. 3 (1906)CrossRefGoogle Scholar.

61. People ex rel. Rodgers v. Coler, 166 N. Y. 1, 59 N. E. 716, 52 L. R. A. 814, 82 Am. St. Rep. 605 (1901); People ex rel. Treat v. Coler, 166 N. Y. 144, 59 N. E. 776 (1901); People v. Orange County Road Construction Company, 175 N. Y. 84, 67 N. E. 129, 65 L. R. A. 33 (1903); People ex rel. Cossey v. Grout, 179 N. Y. 417, 72 N. E. 464 (1904).

62. Groat, “The Eight Hour and Prevailing Rate Movement in New York State.”

63. It is instructive to compare this constitutional response to the invalidation of legislation to labor's responses to its other major complaint against courts in this period: their continued issuance of injunctions to end strikes and hamper labor organizing. Unlike state courts' rulings on constitutional grounds, which could only be overcome by amending the constitutional itself, labor injunctions were typically grounded in either common law or antitrust legislation. Thus, it seemed possible to prevent the courts from issuing antilabor injunctions through legislation alone, that is without a constitutional amendment. As Felix Frankfurter explained in a 1929 law review article, “Reform of abuses revealed by the use of labor injunctions therefore presents a variety of problems for legislative solution. Legislation might immunize activities of organized labor from all tort liability—pecuniary responsibility, as well as restraint of conduct—or merely define the conduct that is to be deemed wrong. Again, legislation might withdraw from the scope of injunctive relief activities normally prevalent in labor controversies, or merely fashion a procedure especially suitable to injunctions in such cases. Legislation has entered all these fields.” See Frankfurter, Felix and Greene, Nathan, “Legislation Affecting Labor Injunctions,” Yale Law Journal 38, no. 7 (1929), 880CrossRefGoogle Scholar.

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64. Groat, “The Eight Hour and Prevailing Rate Movement in New York State.”

65. Workingman's Federation of the State of New York, “Official Proceedings of the Workingman's Federation of the State of New York” (1906).

66. People ex rel. Williams Engineering & Contracting Co. v. Metz, 85 N.E. 1070 (1908).

67. Orren, Belated Feudalism.

68. Ibid., 74.

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71. “All These Laws Will Be in Danger If the Eight Hour Amendment Is Defeated by the People November 3,” Montana Labor News, October 29, 1936.

72. State ex rel. Kern v. Arnold, 100 Mont. 346, 49 P.2d 976, Mont. (1935).

73. “History of the Shorter Working Day Constitutional Amendment in Legislature,” Montana Labor News, October 22, 1936.

74. Ibid.

75. “All These Laws.”

76. State v. Safeway Stores, 76 P.2d 81 (1938).

77. Article 18, Section 4, Amendment 43.

78. Grodin, Joseph R., Massey, Calvin R., and Cunningham, Richard B., The California State Constitution: A Reference Guide, Reference Guides to the State Constitutions of the United States, no. 11 (Westport, CT: Greenwood Press, 1993)Google Scholar.

79. See page 274 of Hundley, Norris, “Katherine Philips Edson and the Fight for the California Minimum Wage, 1912–1923,” The Pacific Historical Review 29, no. 3 (1960)CrossRefGoogle Scholar.

80. Ibid. While there were movements among both male and female labor leaders for the adoption of gender-neutral minimum wage laws, led by Gompers, the AFL was staunchly opposed to minimum wage laws for men and women, believing that labor would be better served by establishing a family wage for male breadwinners directly through their employers. The National Women's Trade Union League and middle-class female Progressive reformers, like Florence Kelley, generally supported a minimum wage for both men and women, but settled for protective legislation for women, some out of the belief that protective legislation for women was better than no protective legislation at all. Others were motivated by maternalist sentiments, believing that women needed special state protection because of their role as mothers coupled with their relative weakness when compared to male laborers. See Hart, Bound by Our Constitution,.especially pages 78–85.

81. See page 277 of Hundley, “Katherine Philips Edson and the Fight for the California Minimum Wage, 1912–1923.”

82. For a more detailed account, see Katz, “Socialist Women and Progressive Reform,” 131. See also Skocpol, Theda, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, MA: Belknap Press of Harvard University Press, 1992), 415Google Scholar.

83. Flint, Winston Allen, The Progressive Movement in Vermont (Washington, DC: American Council on Public Affairs, 1941)Google Scholar.

84. Lochner v. New York 198 U.S. 45 (1905).

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88. State constitutions that did not contain the phrase “due process of law” often contained provisions that were interpreted in equivalent ways by state courts.

89. Holden v. Hardy 169 U.S. 366, 18 S.Ct. 383 (1898).

90. Phillips, The Lochner Court, Myth and Reality.

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96. In re Eight-Hour Law, 21 Colo. 29, 39 P. 328 (1895).

97. Holden v. Hardy, 169 U.S. 366 (1898).

98. “Eight Hour Law Decision: Labor Men and Lawyers Anxious to See Text of Opinion,” New York Times, December 3, 1903.

99. In re Morgan, 26 Colo. 415, 58 P. 1071, Colo. (1899).

100. Lonsdale, David L., “Chicanery in Colorado,” Red River Valley Historical Review 4, no. 3 (1979)Google Scholar; Enyeart, “‘The Exercise of the Intelligent Ballot’.”

101. This phenomenon was also evident in California. In an explanation of the purpose of California's minimum wage amendment for women in 1914, a state assemblyman explained: “A similar law has been sustained by the Oregon courts and is now before the United States supreme court … It is expected that the United States supreme court will hold as it has with the eight hour law—‘legislation that is not in conflict with the federal constitution, but is an extension of police power of the state.’ To be sure that nothing in our state constitution will prevent this great act of justice and mercy being done to protect the women of this state, vote ‘Yes’ on Assembly Constitutional Amendment No. 90” (“Minimum Wage” in Amendments to Constitution and Proposed Statutes with Arguments Respecting the Same: To be Submitted to the Electors of the State of California at the General Election on Tuesday November 3, 1914, Certified by the Secretary of State and Printed at the State Printing Office, 1914, 29).

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103. Dinan, “Court-Constraining Amendments and the State Constitutional Tradition.”

104. “Political Notes from Arizona,” Miners Magazine, July 7, 1910.

105. “For the O.F. Of L.” Toledo Union Leader, September 6, 1912.

106. “On to Canton, Urges O.F. Of L.,” Toledo Union Leader, September 27, 1912.

107. Ohio State Federation of Labor, “Proceedings of the Twenty-Ninth Annual Convention of Ohio State Federation of Labor,” Canton, OH, Oct. 14–19, 1912.

108. American Association for Labor Legislation, “Topical Index by States,” American Labor Legislation Review (1913).

109. “That Constitutional Convention,” Toledo Union Leader, May 3, 1912, 2.

110. For a description of labor's influence in the Arizona legislature in the years after the constitutional amendment passed, see Byrkit, James W., Forging the Copper Collar: Arizona's Labor Management War of 1901–1921 (Tucson: University of Arizona Press, 1982), 52Google Scholar.

111. McCann, Michael W., Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization, Language and Legal Discourse (Chicago, IL: University of Chicago Press, 1994), 11Google Scholar.

112. “That Constitution,” Miners Magazine, January 5, 1911.

113. Colorado State Federation of Labor, “Report of Proceedings of the Seventh Annual Convention” (Trinidad, CO, June 9–13, 1902).

114. “An Appeal for an Eight-Hour Fund,” Miners Magazine, August, 1903.

115. “Oklahoma Shows the Way: Government by Injunction Abolished—Michigan Should Follow Suit,” Michigan Union Advocate, Nov. 1, 1907.

116. “Labor's Bill of Rights,” The Garment Worker, September 17, 1915.

117. National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937).

118. Orren, Belated Feudalism, 210.

119. For example, see Kramer, The People Themselves; Siegel, Reva B., “She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family,” Harvard Law Review 115, no. 4 (2002)CrossRefGoogle Scholar.

120. Tom Burke and Jeb Barnes describe the methodological difficulties of determining the empirical effects of rights politics in their article entitled “Is There an Empirical Literature on Rights,” forthcoming in Studies in Law, Politics, and Society.

121. Nebraska was a more complicated case since the constitutional amendment passed so long after the court case to which it was responding and did not pertain to an identical policy. While delegates passed this constitutional amendment in response to a state supreme court case overturning an eight-hour law for both men and women, a similar law for women alone was actually passed and even upheld by the state supreme court before the constitutional revision of 1920.

122. People ex rel. Williams Engineering & Contracting Co. v. Metz, 85 N.E. 1070 (N.Y. 1908).

123. Lonsdale, David L., “The Fight for an Eight-Hour Day,” The Colorado Magazine 43, no. 4 (1966)Google Scholar. See also Enyeart, “‘The Exercise of the Intelligent Ballot’.”

124. Commonwealth v. Hillside Coal Co. 58 S.W. 441 (1900).

125. The state supreme court explained that the state constitution “makes it the duty of the legislature to ‘pass laws to provide for the health and safety of employees in factories, smelters and mines.’ And we are not authorized to hold that the law in question is not calculated and adapted in any degree to promote the health and safety of persons working in mines and smelters. Were we to do so, and declare it void, we would usurp the powers entrusted by the constitution to the lawmaking power” (Holden v. Hardy, 14 Utah 71 [1896]).

126. Holden v. Hardy, 169 U.S. 366 (1898).

127. Zancanelli v. Central Coal & Coke Co., 173 Pac. Rep. 981 (1918).

128. For an valuable discussion of states' tendencies to practice “comparative politics” when making social policy, see pages 68–73 of Clemens, The People's Lobby.

129. For example, on January 8, 1915, The Garment Worker reported that “the voters of Wyoming adopted the constitutional amendment which provides for workmen's compensation … this maintains the proportion of one-half of the states accepting this principle, and equalizes the loss sustained last month by the Kentucky Court of Appeals when it held that the compensation act of the state was unconstitutional.”