Labor's Constitution of Freedom
![handle is hein.journals/ylr106 and id is 959 raw text is: Articles
Labor's Constitution of Freedom
James Gray Pope'
According to the standard story, the basic structure of modem
constitutional law emerged from a clash between two great visions of judicial
review: the laissez-faire constitutionalism of the so-called Lochner' Era, and
the progressive vision concisely summarized in footnote four of United States
v. Carolene Products.2 The conflict is recounted as a human drama with a cast
of characters that includes conservative jurists and businessmen on the Lochner
side and reform-oriented professionals, intellectuals, and businessmen on the
Carolene Products side. At the climax, Justice Owen Roberts switches to the
progressive side and the Wagner Act--centerpiece of the second New Deal-is
upheld by a five-to-four vote in NLRB i Jones & Laughlin Steel Corp.'
t Professor of Law, Rutgers University School of Law, Newark. New Jersey. In the course of this
Article's lengthy period of germination, I have benefited from the insights of many people. The fact that
I will omit some here is a comment not on the importance of their contibutions, but on the failings of my
memory. Donna Dorgan assisted me on research strategy at the project's inception. An early sersion of the
piece was presented at the Philadelphia meeting of the Law and Society Association. wNhere I profited from
the thoughtful commentary of Dan Ernst, as well as suggestions from my copanelists As always, the
Rutgers faculty colloquium yielded lively and useful feedback. Bruce Ackerman. Jennifer Hochchild. and
Daniel T. Rodgers took on the draft at its most bloated stage and provided badly needed suggestions, as
well as encouragement for the enterprise. My colleague Alan Hyde gave crucial strategic ad'.tc as ,,ell
as detailed feedback at more than one stage of the project. Wayne Eastman. John Lcubsdorf. Dorothy
Roberts, Lew Sargentich, and William Palmer Gardner pinpointed problems that I have tred to correct.
This Article would not have been possible without the underfunded and underapprectatcd labors of
archivists around the country. Gene DeGruson. Curator of Special Collecttons at the Pittsburg (Kansas)
State University provided assistance far beyond the call of duty. not only by proiding rare manuscnpt
materials but also by helping me to glimpse the past through his vivid poetic interpretations (published in
GENE DEGRUSON, GOAT'S HOUSE (1986) by the Woodley Memonal Press. Topeka. Kan.) Special thanks
are also due to the staffs of the Tamiment Institute at New York University and the Illinois Historical
Survey, who enabled me to complete the project on a minimal travel budget.
1. Lochner v. New York, 198 U.S. 45 (1905).
2. 304 U.S. 144, 152 n.4 (1938).
3. See, e.g., EDWARD S. CORWIN, CONSTITUTIONAL REVOLUTION. LTD. 64 (1941). WILLIAM E
LEUCHTENBURG, FRANKLIN D. ROOSEVELT AND THE NEW DEAL 1932-1940. at 231-39 (1963). PALL L
MURPHY, THE CONSTITUTION IN CRISIS TIMES 1918-1969. at 70-110 (1972) (hereinafter MURPHY.
CONsTITUImON IN CRISIS]; WALTER F. MURPHY. CONGRESS AND THE COURT 46-62 (1962) [hereinafter
MURPHY, CONGRESS]; GEOFFREY R. STONE ET AL.. CONSTITUTIONAL LAW 167-68. 180-81. 802-04 (2d
ed. 1991); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 8-6 (2d ed. 1988)
4. 301 U.S. 1 (1937).](ViewImageLocal?handle=hein.journals/ylr106&div=39&collection=&method=preview&ext=.png&size=3)
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