James Gray Pope, Peter Kellman & Ed Bruno New Labor Forum 16(2): 9–18, Spring 2007


During the first half of the 20th Century, the period when all of the United States’ major workers’ rights statutes were enacted, the American labor movement claimed the rights to organize and strike under the Thirteenth Amendment to the U.S Constitution. Beginning in 1909, it was the official policy of the American Federation of Labor that a worker confronted with an unconstitutional injunction had an “imperative duty” to “refuse obedience and to take whatever consequences may ensue.” At a time when union institutions were as weak as they are today, every attack on workers’ rights was met with an impassioned defense of the constitutional rights to organize and strike. At the same time, the movement took a long-term approach to legislative reform, demanding the full freedom to associate in organizing unions and staging strikes. In recent decades, by contrast, the movement has often shied away from defending the right to strike at moments of conflict (the 2005 New York subway strike being a prominent example), and has shaped its legislative proposals to fit what it sees as the short-run possibilities (for example, the Employee Free Choice Act, which makes no attempt to protect the right to strike). This article suggests that elements of the old labor movement’s constitutional strategy might be useful in the struggle for workers’ rights today.


Labor and Employment Law

Date of this Version

June 2010