Manufacturing Gold Bricks Filled with Dynamite – The AFL Turns to the Thirteenth
Amendment
Through injunctions and antitrust enforcement, the courts had nearly destroyed organized
labor in the early years of the twentieth century. But just as Gompers and the AFL had
improvised in the face of economic due process jurisprudence by collectivizing freedom of
contract ideals and retreating into the private sphere, they would also respond to hostile courts
deploying the common law and federal legislation against them through a series of legislative
initiatives meant to curb court jurisdiction and a sophisticated constitutional narrative centered
on the Thirteenth Amendment. While organized labor was deeply cynical in their assessment of
the motives of judges in their persecution of unions, they nevertheless responded with principled
constitutional arguments to rebut judicial outlawry, and in these arguments anchored in the
Thirteenth Amendment we find a counterpoint to the very constitutional principles of state
neutrality and equality that revisionist scholars of Lochner have claimed legitimately constrained
the courts of that period in their review of labor issues.
Economic due process was not the only
constitutional issue that brought the question of judicial motives during this era into focus, and
economic due process by the end of the first decade of the twentieth century was no longer the
primary object of labor’s counter-attack.
The Thirteenth Amendment served as the linchpin of organized labor’s arguments against
government by injunction and the aggressive enforcement of antitrust laws against unions.
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Gompers spoke of injunctions issued by judges as having been “forged by cunning and
usurpation for the benefit of property owners.” Frey, The Labor Injunction : An Exposition of
Government by Judicial Conscience and Its Menace.
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The Thirteenth Amendment reads: Section 1. Neither slavery nor involuntary servitude, except
as a punishment for crime whereof the party shall have been duly convicted, shall exist within
the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power
to enforce this article by appropriate legislation. The First Amendment, with its protection of
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Convention