favor of conservative and apolitical tactics. According to Hattam, given the dispersal of power in
the American system of government due to separation of powers and federalism, the courts
gained significant control over the regulation of economic life in the Gilded Age. Proving
themselves unfriendly to workers, courts long stifled the efforts of organized labor through the
application of the common law doctrine of conspiracy against workers, hoping to quell labor
protest and with it any burgeoning of class consciousness. Despite legislation passed at labor’s
behest to control conspiracy trials, courts continually interpreted these laws in such a way as to
render them meaningless, and conspiracy trials continued unabated in the decades following the
Civil War. This failure by legislatures to curb the courts and their common law attack on
organized labor disillusioned Gompers and others and pushed them toward voluntarist solutions
to labor’s problems.
William Forbath points to a slightly later movement by the courts as spurring the critical
reinvention of the labor movement.
He charts in detail the persistent failure of protective labor
legislation, such as wages and hours and working conditions laws, before the bench, as courts
consistently nullified labor’s reformist agenda of the late nineteenth century as it emerged from
state and federal legislatures in the years leading up to the infamous Lochner decision.
points in particular to the 1885 nullification of a New York law that prohibited the manufacture
of cigars in tenements as a significant moment in the evolution of Gompers’ political thought.
Gompers, himself a cigarmaker, had personally lobbied for the passage of this legislation.
However, citing individual rights in controlling the terms of the disposition of one’s own labor as
16
Victoria Hattam discusses the resurgence of conspiracy prosecutions lasting from 1865-1896.
See Hattam, Labor Visions and State Power : The Origins of Business Unionism in the United
States.
17
William E. Forbath, Law and the Shaping of the American Labor Movement (Cambridge,
Mass.: Harvard University Press, 1991). See also Leon Fink, "Labor, Liberty and the Law:
Trade Unionism and the Problem of the American Constitutional Order," The Journal of
American History 74, no. 3 (1987).
18
See Appendix A. Forbath, Law and the Shaping of the American Labor Movement, 177-92.
Better than sixty such laws had been nullified prior to Lochner.
9
Convention