Looking for Rights in All the Wrong Places by Zackin Emily

Author:Zackin, Emily
Language: eng
Format: epub, mobi
Publisher: Princeton University Press
Published: 2013-04-10T04:00:00+00:00

OVERTURNING COURTS

One major advantage that the creation of constitutional labor rights held over the passage of statutes only was that constitutional protections could potentially overcome the hostile stance of state courts toward labor. Some scholars have questioned the degree to which state courts ultimately hampered the development of protective legislation.38 Yet, regardless of how many protective statutes were actually overruled by state courts, labor legislation passed during the Gilded Age and Progressive Era was constantly challenged through litigation. Consequently, labor organizations of the period were convinced that judicial decisions posed a formidable obstacle to their legislative agenda. AFL founder Samuel Gompers concluded that: “The power of the courts to pass upon the constitutionality of a law so complicate[d] reform by legislation as to seriously restrict the effectiveness of that method.”39 This anxiety about the constitutionality of labor legislation transformed labor’s desire for protections that could simply have been enacted as statutes into demands for constitutional rights.40

One reason constitutional rights seemed superior to mere statutes is that they enabled labor to work around adverse court decisions by widening the scope of conflicts about the constitutionality of a particular law.41 By increasing the number of people engaged in the conflict over the legitimacy of labor legislation, it was possible for labor to change the ratio of its allies to its opponents. This tactic was particularly important when state supreme courts struck down protective labor legislation. Because no appeal to a higher court was legally possible, when the state supreme court nullified a piece of labor legislation, advocates of the legislation often attempted to reinstate the legislation by removing the conflict from the court and shifting it to a different venue.42 Once constitutions clearly authorized legislatures to pass particular pieces of protective legislation, there could be little question about the constitutionality of that legislation (at least on state grounds). Thus, these amendments effectively returned questions about whether protective legislation should exist to state legislatures.

New York’s Constitution was amended in 1905 for just this purpose. Since its founding in 1865, the primary goal of the New York Workingmen’s Assembly was to promote the passage of protective labor legislation in New York State. The eight-hour workday was one of its earliest legislative demands, and by 1897, it had succeeded in convincing the legislature to pass a law limiting the workday on public works to eight hours and requiring that laborers must be paid at the prevailing rate.43 In a series of state supreme court cases, this regulation was challenged and declared unconstitutional and completely void.44

In order to reestablish the regulations, New York State labor leaders attempted to amend the state’s constitution. In his 1906 article about New York’s eight-hour movement, political scientist George Groat explained: “The only way out of the difficulty was to change the fundamental law of the state in such a way as to overcome the objections of the court against the law.”45 Groat was pointing out that, because the state supreme court had ruled the eight-hour law unconstitutional, the only way

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