Michigan — the cradle of the American labor movement — is about to become a “right to work” state. And it’s something of a return to America’s economic roots.
Before the New Deal, nearly every state was a “right to work” state. They assumed that competent parties were free to make employment contracts on any terms that they found mutually advantageous. Employer and employee were perfectly equal before the law — this was called “employment at will.” Either party could terminate the contract for any reason whatsoever; employers could not force employees to work, nor could employees compel employers to retain them. The state would not interfere as individuals bargained over wages, hours, and working conditions.
The free labor market was an important factor in the rapid economic growth of the United States after the Civil War. Critics, reformers, and radicals in the 19th century denounced the whole philosophy of employment at will, arguing that the formal equality of employer and employee was a sham, and that the overwhelming power of corporations permitted them to impose “wage slavery” on their workers. Roscoe Pound, the dean of Harvard Law School and one of the fathers of progressive jurisprudence, averred that it was absurd for judges to pretend that a billion-dollar corporation and a penniless immigrant really bargained about the terms and conditions of employment “as if [they] were farmers haggling over the sale of a horse.”
Labor unions were among the more controversial and legally contentious ways in which workers tried to reform the industrial labor-relations system. Simply put, unions were voluntary associations of workers that tried to use their members’ aggregate power to bargain with employers. Legally, they were perfectly free to do so. The problems came when unions attempted to compel employers to bargain with them, since employers had the right to refuse to recognize unions, and indeed to fire employees who joined unions.
The next step for union members who faced recalcitrant employers was to begin a “strike,” to withhold their labor in an effort to bring economic pressure on their employer. In most cases, workers were perfectly free to do so; they could not be compelled to work. However, in most cases, industrial workers could be easily replaced and business would continue as usual. Thus, unionists adopted tactics such as picketing and boycotting.
Employers responded by hiring professional strikebreaking firms, using detectives and spies, and blacklisting union organizers. Strikes had a tendency to degenerate into violence, with threats and assaults used against the “scabs” and “finks” who would replace striking workers. Near industrial warfare accompanied the Great Railroad Strike of 1877, the Homestead Strike of 1892, and the Pullman Strike of 1894.
Public opinion usually turned against the unionists when violence broke out, at which point the power of the state, and courts in particular, broke most strikes. Employers were able to get court orders to prohibit strikers from interfering with employers and non-striking workers who wanted to continue the business. With one exception, every injunction was issued after strikers had engaged in violent or intimidating activity.