Mommy, what's a corporation? by Rakesh Bhandari 23 February 2002 20:26 UTC
thanks, Ian, this seems to be a very interesting analysis indeed. ARTICLE 102 Colum. L. Rev. 1 (2002) The Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921-1957 James Gray Pope During the twentieth century, Congress's power to regulate commerce grew sensationally while its human rights powers atrophied. The author traces this phenomenon back to the choice, made by lawyers and politicians in the early 1930s, to base labor rights statutes like the Wagner Act on the Commerce Clause instead of the Thirteenth Amendment. Unions and workers argued that the rights to organize and strike made the difference between freedom and involuntary servitude. But a bevy of progressive lawyers who styled themselves "friends of labor" undermined labor's Thirteenth Amendment theory. The author argues that this clash reflected not merely tactical differences among allies, but fundamentally conflicting constitutional goals. He contends that the Supreme Court upheld the Wagner Act not because of the lawyers' Commerce Clause arguments, but because workers staged a series of sit-down strikes that confronted the swing justices with a choice between industrial peace or war. Af! terward, unions and workers interpreted the Wagner Act decisions as victories for labor freedom, but the Act's Commerce Clause foundation pointed in a different direction-one leading to fateful distortions in the jurisprudence of congressional powers. ^^^^^^^^ CB: In my opinion the error of the legal strategy in the 30's was the failure to put labor rights directly in the Constitution through amendment when there were large working class majorities that could have won this. The Constitution is amendable; there was no reason to base labor statutes on the 13th Amendment or the Commerce Clause instead of putting labor rights directly in the Constitution ( See my " For a Constitutional Amendment for a Right to a Job")
