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The Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of the Post-New Deal Constitutional Order, 1921-1957

James Gray Pope

Rutgers Law School - Newark

Columbia Law Review, Vol. 102, 2002
Rutgers School of Law-Newark Research Papers No. 015

During the twentieth century, Congress's power to regulate commerce grew sensationally while its human rights powers atrophied. This strange phenomenon originated in 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 article argues that this clash reflected not merely tactical differences among allies, but fundamentally conflicting constitutional goals. It 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. Afterward, 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.

Number of Pages in PDF File: 123

Keywords: Thirteenth Amendment, Commerce Clause, New Deal Constitutional Revolution, Norris-LaGuardia Act, Wagner Act, Taft-Hartley Act, right to strike, lawmaking from below, jurisgenesis

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Date posted: May 21, 2002  

Suggested Citation

Pope, James Gray, The Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of the Post-New Deal Constitutional Order, 1921-1957. Columbia Law Review, Vol. 102, 2002; Rutgers School of Law-Newark Research Papers No. 015. Available at SSRN: http://ssrn.com/abstract=309585

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James Gray Pope (Contact Author)
Rutgers Law School - Newark ( email )
123 Washington Street
Newark, NJ 07102
United States
973-744-3642 (Phone)
973-353-1445 (Fax)
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