One doesn't have to be a historian or archivist to appreciate just how negatively skewed the U.S. judicial system has been in its dealings with working people. One doesn't have to be a legal scholar to acknowledge that moneyed interests are equipped with their own form of "justice." All one has to do is pay attention.
From Day One, the federal courts and Supreme Court have taken the side of employers, merchants, plantation owners, industrialists, entrepreneurs, bankers, and any other remotely Establishment figure (including law enforcement officials) who stands in opposition to the interests of the working masses. Not to get all "Marxian" here, but that observation is as true as it gets.
Moreover, it shouldn't surprise anyone. After all, whom do federal judges typically pal around with? The wealthy and influential, or people who actually toil for a living? Indeed, if it happened to be the latter, it could serve as the opening to a classic joke: "A welder, bricklayer and federal judge were drinking together in a bar...."
Granted, the High Court has thrown the occasion bone in the direction of the "proletariat," but that gesture has usually been in the form of extending due process to some underdog. It's different when it comes to money and property. In matters involving economic hegemony, workers have historically been pissed upon from a great height.
One example of the judiciary's "corporate mindedness" is the application of the landmark Sherman Anti-Trust Act (1890) in the infamous Danbury Hatters Case (1908). While liberals welcomed passage of the Sherman Act, because they finally had something on the books that thwarted monopolies and price-fixing, the manner in which the Supreme Court interpreted the Act was a mind-blower.
Briefly, the facts are these: When a labor union, the United Hatters of North America, tried to organize a hat factory -- D.E. Loewe and Company, located in Danbury, Connecticut -- the company unceremoniously rebuffed them (officials refused even to meet with the union). Accordingly, the United Hatters called a strike.
When D.E. Loewe and Company hired scabs to replace the striking workers, the hatters swung into action. With the assistance of the AFL (American Federation of Labor), they launched a public relations campaign, urging the company's retail outlets not to carry Loewe's merchandise. Apparently, the boycott worked extraordinarily well. Customers balked and orders shrank.
But D.E. Loewe took its case all the way to the Supreme Court. They argued that the AFL's boycott violated the "restraint of trade" provision laid out in the Sherman Act, and incredibly, the U.S. Supreme Court bought the argument. The Court basically stated that anything -- including strikes and boycotts -- that resulted in significantly impeding a commercial venture was illegal under terms of Sherman.
Not content to simply win, D.E. Loewe filed a lawsuit against the union, demanding compensation. Citing the Sherman Act, a lower court awarded Loewe triple damages to be paid by members of the United Hatters. Triple damages! Bank accounts were attached and home foreclosures were threatened. Naturally, the union appealed, but the Supreme Court, in 1915, upheld the decision. So much for workers' rights.
The Danbury Hatters Case was just one of many anti-labor decisions passed down by the courts. There have been dozens of others. It wasn't until 1932, with passage of the Norris-LaGuardia Act (which forbid judges from arbitrarily issuing strike injunctions), that things began looking up, and it wasn't until 1935, with passage of the Wagner Act, that organized labor finally gained a place at the table.
Still, even with Wagner in effect, organized labor's status was precarious. In fact, labor's "glory days" lasted barely 12 years. In 1947, the Taft-Hartley Act altered many provisions of the Wagner Act, including making "right to work" states legal and making secondary boycotts illegal.
By passing Taft-Hartley, the U.S. Congress demonstrated that it was equally as hostile to labor as the courts were.
Unfortunately, boycotts (even the legal, modestly ambitious ones) don't usually work in today's world because we've all become too fragmented and diluted (in union jargon: "corpuscular"). It's hard to mobilize and harder yet to maintain discipline.
But even if we did become unified, even if by some crazy happenstance working Americans (the bottom 80-percent), in a splashy show of solidarity, were able to put a dent in the nation's commerce, it would be deemed "illegal." For the "good of the economy," President Obama would invoke Taft-Hartley and make everybody go back to work.
Working people have no leverage. They aren't allowed to engage in meaningful strikes, they aren't allowed to engage in meaningful boycotts, and they aren't even allowed to keep their jobs during a walkout. Which gives a whole new meaning to the term "stacked deck."
David Macaray is a playwright and author. His newest book, "Nightshift: 270 Factory Stories," will be published in June.
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