Big labor and big Washington


President Obama went to Pittsburgh on Tuesday to fire up members of the AFL-CIO at their convention. You'll find a remarkably important history lesson and insight into Obama's thinking about the U.S. Constitution buried in his speech.

Believe it or not, a Pittsburgh labor dispute in the 1930s made the modern power-grabbing actions of Congress and the executive branch possible, and the president recognized this important moment of history in his speech to the union. Indeed, he has much to be thankful for: Without the vanguard work of 1930s union organizers, today's federal reach into the banking, auto, and healthcare industries would not be possible.

Let's turn back the clock. While President Franklin D. Roosevelt was in office during the first half of the 1930s, the U.S. Supreme Court shot down many of his important progressive legislative priorities because they exceeded the powers given under the commerce clause of the U.S. Constitution. The court rightly slapped the president's hands for seeking to meddle in the economy without constitutional justification. In his famous "court-packing" scheme, FDR became frustrated and threatened to add six new compliant justices to the high court, raising the number from nine to 15 so he could have his way with court rulings on his legislative priorities. Do you recall the saying "The switch in time that saved nine"? More on that later.

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Certain to be another piece of prominent legislation to be shot down by the court, the 1935 Wagner Act, also known as the National Labor Relations Act, was at issue in the 1937 case National Labor Relations Board v. Jones & Laughlin Steel Corp. Thought to be a violation of the Constitution's commerce clause, the Wagner Act would have forced union organizing and bargaining practices upon businesses while outlawing private, company-sponsored unions. Pillars of American freedom were at stake---namely freedom of contract, protection of private property, and competition.

The Wagner Act would have required businesses to negotiate with unions even if they thought it would not be in the best interest of the business or their workers. Business owners would no longer have the right to contract freely with workers and, if a union was instituted, workers would no longer have the right to contract freely with their employer---they would have to be represented by the union. Moreover, businesses would be forced to provide access to their private property so that unions could organize. While the unions organized, businesses would lose their right to speak freely with their employees. And if businesses and employees had already formed a private union at the company, such an arrangement would be abolished. No competition for the new third-party union allowed! Therefore, only third-party unions like today's AFL-CIO would be legal. In short, the Wagner Act would establish a new monopoly---labor representation organizations---and pull down pillars of American freedom in the process.

Like prior grossly intrusive Roosevelt-era programs, the Wagner Act was certain to meet its merciful demise at the Supreme Court . . . until Justices Charles Evan Hughes and Owen Roberts switched sides, resulting in a stunning 5-4 decision siding with the National Labor Relations Board. This "switch in time that saved nine" (now FDR no longer needed to pack the court with a majority of sympathetic justices) changed the way Congress and America did business. This court case set a precedent for several subsequent Supreme Court decisions that opened the floodgates for Congress to insert itself in heretofore-untouchable areas of American life. It's not an overstatement to say that Roosevelt's heavy-handed threatening, the progressive Wagner Act, and the switch in time that saved nine make possible our federal government's socialist violations of American freedom, including the recent breathtaking power grabs by the Obama administration and a compliant Congress.

It's not surprising that President Obama lauded big labor in Pittsburgh for this historic case. He owes a great debt to the Roosevelt-era union organizers for altering constitutional order. Without their groundbreaking work, so much of American life would be off-limits to a freedom-sapping Washington, D.C.

Lee Wishing
Lee Wishing

Lee is the administrative director of The Center for Vision & Values at Grove City College.


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