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#698 - Labor Organizing and Freedom of Association--Part 2, 24-May-2000

[Because large economic inequalities create serious public health
problems and give rise to social instability, and because labor
unions help reduce economic inequalities, we are publishing this
illuminating series on U.S. history from a labor perspective.

by Peter Kellman*

As we saw last week (REHW #697), American men of property in 1776
wanted to be free from English taxation and control. They wanted
to be free to exploit the resources of America and not share the
wealth with the English ruling class.

The American Revolution was promoted primarily by two groups of
people. The members of these two groups had three things in
common: (1) they owned property; (2) they were white, and (3)
they were men. The first group consisted of speculators, large
landowners, plantation owners and those that had large commercial
interests. In the second group were shopkeepers and skilled
artisans, the small business people of their day. These two
groups made up at most 10% of the population. They organized the
revolution and ran the state governments that took power when the
13 colonies declared independence in 1776. They formed the
Republic of the United States.

However, most of the population was excluded from participating
in the Republic. Those on the outside looking in included people
who were the outright property of other people. Some of these
people were African slaves and their American descendants who
represented 20% of the population. Another group was indentured
servants, people who were the outright property of other people
for a set period of years. Indentured servants made up about 10%
of the population. All women, native people and freemen without
much property were denied the right to vote. In South Carolina in
1787, for example, "every free white man of the age of 21... and
has a freehold of fifty acres" was eligible to register to
vote.[1] But to be Governor of South Caroline the bar was raised
even higher: one had to be worth 10,000 pounds.[2]

The U.S. Constitution

In 1776, the 13 colonies declared their independence from the
British Crown and in 1781 the former colonies, now states,
ratified a set of rules called the Articles of Confederation
which determined their relationship to each other. In 1787 the
state legislatures sent delegates to a meeting to discuss
amending the Articles of Confederation. This meeting is now known
as the Constitutional Convention of 1787. It was a closed
meeting, the minutes of which were made public 53 years later.[3]

Much had happened between 1781 and 1787 that caused the class of
people who fomented the revolution to be concerned about their
future. Divisions within the propertied class surfaced in the
state legislatures and conflict between classes manifested itself
in armed insurrections against the authority of state

In the state legislatures, the interests of the small business
owners and artisans clashed with those of the large commercial
organizations. The small businessmen wanted high state tariffs to
protect their small concerns, while those with large commercial
interests demanded so-called "free trade" between the states.
Meanwhile, the people who were clearing the land wanted to own
it, and armed insurrection against state authority broke out in
many places. For example, the rebellion of Vermont's Green
Mountain Boys against their New York landlords eventually led to
the establishment of Vermont as the 14 th State in 1777. But it
was Shays Rebellion, the armed insurrection of western
Massachusetts farmers against the policies of the commercial
class in Boston in 1786-1787, that weighed most heavily on the
large property owners who sat down in 1787 to write the
Constitution of the United States. Those who wanted free trade
between the states saw the need to have a strong federal
government and federal army that would always be available to put
down rebellions that could not be suppressed by state militias.

The men who assembled in Philadelphia in 1787 to write the
constitution were all men of property. The noted historian
Charles Beard states that James Madison, primary author of the
Constitution,..."in more than one speech pointed out that the
conflict of interests was inescapable. He told the convention
that the greatest conflict of all in the country was between
those who had property and those who had none." Beard goes on to
say that, "Leaders among the framers wanted, among other things,
first to hold the Union together; second, to set up a government
that would protect, regulate, and promote types of economic
enterprise; third, to put brakes on the state legislatures which
had been attacking the interests of protected classes."[4]

Here is some of what the founding fathers came up with:

The Commerce Clause - The First NAFTA

The Commerce Clause of the Constitution, Article 1 Sec. 8(3), was
written "To regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes" and was created to
straighten out the conflict of interest between the small and
large property owners. After the Constitution was ratified,
independent state legislatures were no longer able to erect
protective tariffs that "hindered" the flow of goods between the
states. The big commercial interests of the day had triumphed
over the small enterprises trying to "grow" local businesses.

Recently a similar event took place when the large transnational
corporate interests triumphed over national business interests
and labor with the passage of the North American Free Trade
Agreement (NAFTA). The Commerce Clause was the first "free trade"
agreement in North America, and like NAFTA, it was negotiated at
a closed meeting.[5]

The Contracts Clause

The Contracts Clause of the Constitution, Article 1 Sec. 10(1),
says in part that, "No State shall... pass any... Law impairing
the Obligation of contracts." Legal theory holds that contracts
are agreements made between equals, and therefore the state
should not meddle.[6] If a state were to pass a PUBLIC law that,
for example, set the maximum hours an employer could require
people to work, it would be seen by the courts as IMPAIRING the
right of individual citizens to negotiate contracts free from
outside interference. Contracts are PRIVATE laws. And thus most
labor laws passed by state legislatures and Congress prior to
1937 were ruled unconstitutional by the U.S. Supreme Court
because they violated the Contracts Clause. They were PUBLIC LAWS
that violated PRIVATE LAWS. The meaning is clear. The obligation
of the government, as stated in the preamble to the Constitution,
to promote the "general Welfare," is secondary to the PRIVATE
law, the law of contracts.

Once again, the theory of contracts is based on the assumption
that the contracting parties are equals. The founding fathers
would have us believe that an indentured servant negotiating a
contract with his master was somehow equal to the master at the
negotiating table. The situation is similar to a small local
union with 200 members negotiating a contract with a large
employer who brings to the table enough resources to move the
plant. In practice this can hardly be called a contract
negotiated between equals. But this is the legal fiction, and the
courts, congress, national guard, army and police uphold this
distortion of common sense.

The LOCHNER V. NEW YORK case of 1905 is a classic example of how
the Contracts Clause suppressed the democratic legislative
activities of working class people. As a result of popular
agitation, the New York State Legislature passed a law limiting
the hours of work for people employed in bakeries to no more than
10 per day and 60 per week. The U.S. Supreme Court ruled, "Under
such circumstances the freedom of master and employee to contract
with each other in relation to their employment, and in defining
the same, cannot be prohibited or interfered with, without
violating the Federal Constitution." Do you know of any state or
federal law today that limits the number of hours an employer can
require an adult to work?

Dominance of the PRIVATE law over the PUBLIC law in our
Constitution has made it very hard for working people to use the
political process to better their conditions. This is true
because the Constitution restricts our collective activity
primarily to contractual relationships with employers, and the
National Labor Relations Act limits our activity even further. So
much for "We the People" forming a Government to "promote the
general Welfare" that the Preamble to the Constitution promises.
The question is: Who defines the "general Welfare." So far it has
been the lawyers of the elite, who become Supreme Court justices,
not shop stewards, teachers or home makers. When the
constitutionality of a law is questioned it is five Supreme Court
justices who decide for the rest of us issues like: Is a maximum
40 hour week constitutional? Do workers have free speech at work?
Do employers have free speech rights in union certification

The Return Servants Clause

Human rights didn't seem to be high on the agenda of the
constitutional fathers, but labor did make it into the

Article IV Sec. 2(3) says, "No person held in Service or Labour
in one State, under the laws thereof, escaping into another,
shall, in Consequence of any regulation therein, be discharged
from such Service or Labour, but shall be delivered up on Claim
of the Party to whom such Service or Labour may be due."

Men like James Madison and George Washington wanted their human
property, slaves and indentured servants, to know that if they
escaped into another state the Constitution of the United States
guaranteed their return. James Madison, fourth President of the
United States and "master builder of the Constitution," had a
great financial interest in protecting his property. He "told a
British visitor shortly after the American Revolution that he
could make $257 on every Negro in a year, and spend only $12 or
$13 on his keep."[7] At one time James Madison enslaved 116 human
beings. Based on his statement, Madison would have made a yearly
profit of $28,304 on slave labor and the slaves would have
realized nothing but the inhumanity of being a slave. If you were
a slave or indentured servant how would you feel about this
"master builder of the Constitution" writing YOUR constitution?

[To be continued.]


*Peter Kellman works for the Program on Corporations, Law and
Democracy (POCLAD). For information on POCLAD: E-mail
people@poclad.org; or www.poclad.org; or phone: (508) 398-1145;
or mail: P.O. Box 246, So. Yarmouth, MA 02664-0246.

[1] Minor v. Happersett, 88 U.S. 162 (1875), 172-173.

UNITED STATES (N.Y.: Chautauqua Press, 1891), pg. 48.

[3] Jerry Fresia, TOWARD AN AMERICAN REVOLUTION (Boston: South
End Press, 1988), pg. 47.

(New York: Viking Press, 1943), pg. 285.

[5] "Free trade" is the international equivalent of "right to
work." A "right to work" law is a state law that prohibits union
membership as a condition of employment, even though everyone in
a place of employment receives all the benefits that the union
wins under a collective bargaining agreement. As labor people
know, "right to work" means the right to work for less. The
reality of free trade is that workers in one country are forced
to work for less to compete with workers in another country.
"Free trade" = right to work for less.

[6] A contract is an agreement between two or more parties, a
private law enforceable through court action. When a union
negotiates a contract with a private employer, the contract is
not voted on by the state legislature. Yet if one party to a
contract reneges, the aggrieved party will go to court to force
the offending party to live up to the "private law."

1492-PRESENT (N.Y.: Harper Perennial, 1995), pg. 33.

Descriptor terms: u.s. history; labor; organizing; nafta;
slavery; indentured servitude; contract law; u.s. constitution;
constitution; commerce clause; contracts clause;