Labor's constitution of freedom, 1920--1958

This dissertation recounts a legal history of the American labor movement from 1920 to 1958, focusing on the movement's own lawmaking activity. It contends that workers and unions were engaged in various forms of legal practice including: (1) legislating unilateral rules directly regulating relations of production, for example restrictions on the pace of work; (2) formulating and claiming collective rights to organize, strike, and picket; (3) reviewing the constitutionality of statutes and court rulings affecting workers' rights, for example disapproving anti-picketing injunctions and upholding workers' rights legislation like the Wagner Act, and (4) enforcing these rules, rights, and constitutional holdings directly through collective action. Labor activists explained and justified these practices with reference to what the dissertation calls “labor's constitution of freedom,” a sweeping—though 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 and in combination with one's coworkers.; The dissertation examines this history as one instance of a broader phenomenon: constitutional insurgency. It begins by setting forth a theoretical model of constitutional insurgency, focusing on the roles played by popular rights consciousness, direct popular power, and professional legal representation in achieving constitutional change. The body of the dissertation consists of five case studies: (1) the constitutional strike of Kansas coal miners against the Kansas Industrial Court (1920–1926); (2) the revival of the American labor movement under section 7(a) of the National Industrial Recovery Act (1933–1935); (3) the movement's campaign to enact workers' rights legislation under Congress' power to enforce the 13th amendment (1921–1935); (4) the sit-down strike movement and the high point of worker lawmaking (1935–1937); and (5) the gradual suppression of worker lawmaking (1937–1958). The dissertation concludes that rights consciousness and direct popular action were essential to every major advance in the legal protection of collective labor rights during the twentieth century—a dynamic that was well understood by labor activists, but not by their allies among legal professionals and middle-class reformers.