yet, by the late nineteenth century, the French state, while never abandoning its characteristic long reach, had moved markedly away from the suffocating control characteristic of both its absolutist and revolutionary heritage. By the time of the February 1848 Revolution, conservative republicans like Tocqueville were already beginning to positively reappraise worker associations as a possible brace against socialist statism. Over the ensuing decades, a combination of republican and labor/socialist reformers did, in fact, restore an associative dynamic to the body politic. Among the key departures affecting working people were the 1864 law abolishing the crime of “coalition,” the 1884 law legalizing trade unions and associations, an 1892 law facilitating conciliation and arbitration, and the Labor Code of 1910 that officially recognized a legal realm for collective bargaining and trade union action. 3
Still in place today, France’s institutional recognition of Tocqueville’s vaunted intermediary bodies has no parallel in American democracy. Except for business combination through the agency of incorporation, Americans in the industrial era found it more and more difficult under the prevailing laws to “join together” to advance their common economic interest. In particular this was the case for organized workers. Although union membership was generally recognized in principle after Massachusetts Judge Lemuel Shaw’s Commonwealth v. Hunt decision of 1842, in practice such bodies experienced multiple, often crippling, obstacles. By the late nineteenth century, the American national state had yet to adopt the socially interventionist powers of its tricolor counterpart, but neither was it any longer directed by the balance of civic interests that had once impressed Tocqueville. To be sure, Tocqueville himself had early on warned Americans of the inequalities sure to develop within a “manufacturing aristocracy,” but the warning had fallen largely on deaf ears. 4 By 1900, few observers would have doubted which country had more succumbed to extreme individualism. 5
How and why had the “free society” that enjoyed such a head start come up so short so soon? The question begs further inquiry. This chapter examines the issue through the gap between formal political ideals and lived experience, as centered on working people and their characteristic institutional voice, the labor union. With a continuing nod to the European, and especially the French contrast, it seeks to identify, in a cultural as well as legal-institutional sense, the obstacles that working people have encountered in securing and expanding their share of the American promise.
When asked what he thought about Western civilization, Gandhi reportedly quipped, “it would be a good idea.” A late nineteenth-century American trade unionist might have said the same thing about “free labor.” Initially associated with positive images of opportunity, progress, and liberation, the concept had since become identified with arbitrary dismissals, anti-strike injunctions, and a general loss of control at work that for many workers amounted to what they called “wage slavery.” A common-core conviction, it turned out, only awkwardly covered a developing industrial landscape. How to balance the inheritance of the free-labor ideal with the reality of capitalist economic development at the end of the nineteenth century posed a special challenge to the American labor movement.
Workers in Gilded Age America confronted what we might call the free-labor “double paradox.” The first paradox spoke to the ambivalence of the republican heritage. On the one hand, a legacy of freedoms and rights stemming from the Revolutionary era, an economy of relative labor scarcity, and the Civil War’s extirpation of slavery surrounded the nation-state and its history in a positive or at least hopeful hue for most working people. Much earlier than in Europe, both physically coerced entry into labor and criminal sanctions for leaving it were eradicated among the nominally “free” population. 6 The Civil War itself confirmed the free-labor order. Beginning with Lincoln’s rejection of the terms of the Dred Scott case of 1857, a new, national definition of freedom (encapsulated in the Civil War amendments to the Constitution) replaced a patchwork of regional variations, each with its own set of limitations on the basis of age and citizenship status as well as gender and race.
Yet, the very regime that destroyed the South’s slavocracy also enhanced individual rights at the expense of community norms long vouchsafed by resort to common law precedent. Historian William J. Novak thus speaks of the very “invention of American constitutional law” tied to a “legal centralization of state power” that ultimately defined “a wholly new political philosophy” focused on a “radical reconstruction of individual rights.” 7 In particular, the newly-created constitutional protections of “due process,” “equal protection,” and “rights of citizens of the United States” would buttress one aspect of free-labor doctrine—the employer’s “freedom of contract”—while simultaneously threatening organized workers’ collective field of action. The upshot was that nearly every attempt by unions to organize or mobilize workers in the era appealed back to nationalist, “free-labor” principles, while at the same time declaiming against immediate conditions that had grown out of the soil nurtured by those very same principles. As historian Christopher Tomlins suggests, the Civil War toppled one “constellation of un/freedom” only to replace it with a new one. 8
There was a second layer of irony and complexity to the Gilded Age discourse of free labor. The workers who made the claim on the national free-labor heritage included many who were not even American citizens—and many more only recently so. Herbert Gutman first highlighted this point, noting in one of his influential essays how two Scottish American immigrants—railroad detective Allan Pinkerton and Braidwood, Illinois miners leader Daniel M’Lachlan—made different uses of the same political inheritance. As Gutman noted about another immigrant, New Jersey labor editor Joseph P. McDonnell, who had served as Irish secretary of the Marxist First International before emigrating in the early 1870s, “his rhetoric was bathed in working-class republican ideology[,] saturated by it.” 9 On at least two counts, then, we are left to wonder about the hold, and meaning, of free labor ideology in the culture at large.
One colorful, yet not untypical, story illustrates the simultaneously unifying yet divisive nature of free-labor borrowings in the Gilded Age. As Thomas G. Andrews documents in Killing for Coal, the original promise of the West was signaled by the path-breaking railroad engineer and coal owner Williiam J. Palmer, who in the early 1870s identified the mountain regions as a refuge from the “foreign swarms” on the Eastern seaboard, who could be filtered out and prepared “by a gradual process for coming to the inner temple of Americanism out in Colorado, where Republican institutions will be maintained in pristine purity.” By the 1890s, however, the coal miners themselves had tailored Palmer’s message to their own immediate and increasingly desperate situation. Facing wage cuts and the overwhelming power of the Colorado Fuel and Iron Company amid a bitter national strike in 1894, some two thousand miners marched “behind American flags and brass bands.” In the same spirit, a state United Mine Workers organizer rebuked operators for “having taken from [the colliers] their best blood and their American privilege of earning an honest livelihood.” The strikers, he insisted, “stood by the Declaration of Independence” and its guarantee of “life, liberty and the pursuit of happiness.” At a moment of extreme peril, a workers’ community comprising twenty-nine nationality groups thus found common cause in rights they attributed to the American Revolution. Explained one anonymous orator, “Patriots assembled on the Boston Commons … and dared [the British] to oppress them longer, and I say to you that they were men from every civilized land … and they raised that flag and said ‘under that flag we will be free men or under that flag you may bury our dead bodies.’ That flag, gentlemen, waves still.’ ” When their strike was ultimately defeated by a combination of injunctions and strikebreakers, union leaders proclaimed that “Liberty crushed to earth will rise again.” 10
How did it come to pass that the same discursive system of political and economic “liberty” could at once unite the post-Civil War nation and also bitterly divide it on class lines? Historian Eric Foner offers a convincing explanation. Business, economists, and leading newspapers, he suggests, jumped on an “emergent market definition of economic freedom,” emphasizing the benefits of marketplace logic, the laborer’s “juridical freedom” and the “idea
