by Philip Dray
The operators, led by Baer, had begun thinking similarly, although their idea of government participation was for President Roosevelt to assist in procuring a court injunction against the striking miners under the Sherman Antitrust Act. The president demurred, believing that organized labor deserved a hearing and should be viewed as a partner in seeking resolution to workingmen’s difficulties. Moreover, conscious of Mark Hanna hovering over his shoulder, willing to jump in and resolve the strike should Roosevelt falter, he wanted his own involvement to be perceived as constructive. After the president dispatched his commissioner of labor, Carroll D. Wright, to investigate the strike’s origins and causes, Wright reported back that the miners’ working hours probably were too long and that a fair bargaining scenario would be the best approach, despite the operators’ reluctance. Roosevelt, fearing “untold misery … with the certainty of riots which might develop into social war” in case of a continuing fuel shortage, called a Washington conference of all parties to take place on October 3.34
Such a gathering was newsworthy—a president had never before offered to help mediate an industrial strike—and on the day of the meeting, reporters and a “snapshot brigade” of press photographers hovered as the representatives of coal and labor were welcomed to a building adjacent to the White House. Roosevelt was incapacitated as the result of an accident a few weeks earlier when his carriage had been struck by a trolley car, and it was from a wheelchair that he called the event to order. He got straight to business, reminding his guests that the coal crisis affected not only the interests in the room but the public and the economic health of the country. Mitchell of the UMW, flattered by the conference’s implied recognition of the UMW, fell in at once with Roosevelt’s conciliatory tone, offering to put his miners “back to work immediately, provided the operators would agree to leave the [strike] issues to President Roosevelt to decide, and agreed to abide by his decision or the decision of a tribunal to be appointed by him.”35
Baer and his associates would have none of it. They still resented Hanna’s intrusion into the 1900 strike and scorned the notion of putting wage issues into a third party’s hands, even if those hands were those of the president of the United States. Instead they sought to jog Roosevelt’s memory about the Pullman Strike of 1894, when President Cleveland had not hesitated to send the army to deal with turbulent workers and rioters; they suggested that he follow his predecessor’s example and “put federal troops in the field.” Baer, according to one account, spoke with such “great earnestness” that at one point he brought his fist down on a table with force enough “that the blow could be heard even across the street.”36 Roosevelt, who didn’t care much for Baer to begin with, was displeased by his audacity and lack of etiquette. “Bitter language was used, and fists were waved in the air,” it was reported. “The President’s chair was so near the window that from across the street he could be seen at intervals making gestures and every time that he did a clinched hand was seen waving above in counter-gesticulation.”37 Roosevelt later said of Baer’s arrogance, “If it wasn’t for the high office I hold, I would have taken him by the seat of the breeches and the nape of the neck and chucked him out of the window.”38
Despite the thorough airing of views, not even the hint of a breakthrough emerged from the conference. The coal operators agreed to deal with the miners generally, but not with the UMW. During the meeting Baer and the others actually refused to address Mitchell directly, even as he sat a few feet away, for fear so ordinary a courtesy might grant legitimacy to the miners’ union. Roosevelt, however, did not have the luxury of ignoring any further the mounting public pressure for a solution. As a sop to the operators he did send troops to the anthracite region, at one point even suggesting he would, if necessary, have the army take over the mines and operate them. But this development had little effect on either the owners or the miners, who held steadfast to their positions. Determined at all cost not to involve Hanna as an emissary to the coal interests, Roosevelt dispatched Elihu Root, his secretary of war, to consult J. P. Morgan, who had reportedly begun to share the president’s and the public’s concern. Root, a successful attorney whose impeccable reputation included fighting political corruption in New York City, met with Morgan for five hours on October 11 aboard Morgan’s yacht, Corsair, in New York harbor, an unusual place to resolve a coal strike but one chosen to evade reporters.
Morgan’s interests controlled railroads and valuable coal lands throughout the coal region, and while he was accustomed to allowing the operators a free hand to control the mines, he agreed with Root that the nation would only suffer from any further destabilization of the anthracite industry. The question, after the ruckus at the meeting Roosevelt had convened, was how the various parties—especially the prickly Baer—could be brought into mediation without the owners formally recognizing the UMW. Root and Morgan discussed a proposal in which the mine owners would request that the White House create an Anthracite Coal Strike Commission, its members to be selected by the president. A few days later in Washington, Morgan reiterated the idea directly to Roosevelt, who approved.
The owners and the miners also consented to the plan, the owners imposing the caveats that they would not be forced to recognize the UMW and that no labor representative would take part in the arbitration. Roosevelt agreed to their demands, although he did manage to save a chair on the panel for an “eminent sociologist,” and into that slot installed a union man, Edgar E. Clark of the Order of Railway Conductors, who did his best to fulfill the masquerade by dressing and acting professorial. Once seated, the commission worked swiftly. On October 23 a deal was outlined that awarded the miners a 10 percent wage hike, reduced their working hours from ten to nine, or eight in some instances, and established a permanent six-man mediation board to handle future disputes with management.
Although the process had been far from smooth, Roosevelt, with the help of Mitchell, Root, and Morgan, had achieved a significant advance by demonstrating the efficacy of a new means of managing labor disputes. There had been no court injunctions, no violence; no one had been driven from the street at the point of a bayonet. The mining of coal, so essential to the nation’s well-being, had been peacefully restored. The UMW failed to gain recognition from the Baer forces, but the operators had at least bought into the conference system, implicitly acknowledging miners as persons whose demands deserved attention and resolution. Whether they would concede the point or not, the operators had participated in a process that affirmed the legitimacy of labor unions.39
THE CONTEST BETWEEN LABOR AND CAPITAL had found its way to the conference room, but it was, with increasing regularity, also beginning to turn up in court. The government’s decisive use (or misuse) of the antitrust laws in the Pullman Strike had helped stir this trend, and in the early years of the new century, arguments regarding controversial issues such as the closed shop and the regulatory powers of state legislatures, and the rights of organized labor, would frequently be heard and decided there. “What chance,” Samuel Gompers complained to attorney Louis Brandeis in 1902, “have labor and the laborers for fair play when the whole history of jurisprudence has been against the laborers? There never was a tyrant in the history of the world but who found some judge to clothe in judicial form the tyranny exercised and the cruelty imposed on the people.” When Brandeis told Gompers he was being emotional, the leader of the AFL replied, “It is true that I am emotional but I am also emphatic.”40
Curiously, one person keenly interested in these questions was Attorney General Richard Olney, the official who had orchestrated the Cleveland administration’s assault on Debs and the ARU during the Pullman affair. In the months after Pullman, Olney had been criticized by the press for his transparent loyalty to the very railroad interests he’d served in the private sphere; there had been at least one petition demanding his impeachment. Said to be personally insulted by the outcry, Olney was chastened enough to sever some of his financial ties to the railways. He was also candid
in his regret for the immense financial harm that had come to the railroads—$5 million in lost revenue and damage—notwithstanding the success in dethroning “King Debs.”
Olney eventually adopted the view that unions and strikes were not inherently bad and that the growing power of the corporation probably demanded the parallel development of strong labor unions.41 “The time is passed when the individual workman is called upon to pit his feeble single strength against the might of organized capital,” he wrote in an amicus curiae brief in a case involving the Reading Railroad. “Organized labor now confronts organized capital … and the burning question of modern times is how shall the ever-recurring controversies between them be adjusted and terminated.”42 He accepted, as did Theodore Roosevelt, the Progressive notion that organized labor could be a potentially conservative factor in society, valuable in tamping down strike disruptions and disarming the need for more radical solutions. Likely under the sway of the conclusions of the Cleveland administration’s inquiry into Pullman, Olney urged the need to maintain some means of federal strike arbitration. He also advocated the far more contentious idea that, in cases of absolute stalemate in labor disputes involving necessary industries such as coal or railroads, the government should supplant the disagreeing parties.
Some of Olney’s suggestions would become enshrined in the Erdman Act of 1898, which acknowledged railroad unions’ right to exist, offered contending sides in a labor dispute the option of federal arbitration, and banished yellow-dog contracts—agreements new hires were sometimes made to sign that forbade them from joining a union. Four years later an Industrial Commission set up by President McKinley before his death delivered its recommendations—a retreat from the use of injunctions in labor disputes, the regulation of child labor, maximum-hour laws, and a general recognition that labor unions were not devious “combinations” in restraint of trade or in any other way criminal. Echoing Erdman, it also denounced the hated yellow dogs.43
Then the judicial rollback began. The most definitive anti-labor ruling of the era was to be Lochner v. New York (1905), which dealt with attempted state regulation of the baking industry. The New York state legislature, at the urging of reformer Edward Marshall, had in 1895 passed the Bakeshop Act, regulating the hours of bakery workers. Many bakeries were situated in substandard, poorly ventilated environments such as tenement basements, where workers were forced to combat cockroaches and rodents and inhale flour dust for as many as one hundred hours per week. Reformers like Marshall were concerned not only about the workers’ health, but the safety of food products made in such environs.
The underlying issue in Lochner was what was viewed as an employer’s “contract rights,” the “liberty” or “freedom of contract” that some jurists held existed between an employer and his workers. This was a controversial area of judicial reasoning that involved the interpretation of the due process clause of the Fourteenth Amendment, adopted in 1868, which guarantees that no state shall “deprive any person of life, liberty, or property, without due process of law.” On its face it appears to offer procedural safeguards to each citizen’s life, freedom, and belongings, much as the due process clause of the Fifth Amendment makes the same guarantees at the federal level. But beginning with the infamous Dred Scott case of 1857 (Scott v. Sandford), in which the Supreme Court ruled that the Constitution protected the status of slaves as private property, there had arisen an enlarged understanding of the guarantee of due process. This view held that what the Constitution was providing was a more basic promise that certain rights were inviolate and could not be denied or legislated against at all. This trend of legalistic thought, which in the twentieth century would come to be known as “substantive due process,” had also been glimpsed in the Slaughterhouse Cases of 1873, wherein the high court had suggested that the liberty safeguarded by the Fourteenth Amendment included “the right to pursue an ordinary trade or calling.” As historian Paul Kens has written, “With subsequent decisions expanding the idea, it became the means by which the judicial supervision envisioned by proponents of substantive due process could be applied to laws regulating the employer-employee relationship.” The result was the idea that employers and their workers were to negotiate and manage their relationship without government intrusion or regulation.44
The Lochner dispute began when Joseph Lochner, owner of a bakery in Utica, violated the law created by New York State’s Bakeshop Act limiting the hours a baker could work to no more than ten hours a day or sixty in a week. Convicted and fined on two separate occasions, he appealed the second conviction on the grounds that the state regulation interfered with his private right to set working arrangements with his employees, citing previous court rulings that defined legislated restrictions as acts of government intrusion and usurpations of individual freedom. Even these rulings, however, had made an exception where conditions of public health and safety were so abject they necessitated the use of police powers. In Lochner the argument was over that exception. Attorney Henry Weismann, who argued Lochner for the plaintiff, decried that the individual freedom of contract might be forfeited to a dubious claim of police power, when the “average bakery of the present day is well-ventilated, comfortable both summer and winter, and always sweet-smelling.”
Weismann’s imagery was apparently effective, for the court in Lochner swept away the police powers exception, interpreting the due process clause broadly enough to mean that the government had no right whatsoever to interfere with a business’s liberty of contract. It defined both employer and employee as free agents capable of negotiating a work contract without government intrusion, and refused to allow New York State to intervene even where there was an issue of public health the state wished to ameliorate through its police powers. Justice Rufus W. Peckham, writing the 5–4 majority opinion, characterized laws “limiting the hours in which grown and intelligent men may labor” as “meddlesome interferences with the rights of the individual.” The idealization of individual free will has always been a central tenet of American life; what appeared to particularly trouble Peckham and other conservatives on the court was the fear that legislative bodies would enact—in the form of the Bakeshop Act and similar efforts—“class legislation,” laws that were aimed at enabling one class of people over another, in this case giving workers undemocratic authority over their employers.
The venerable Justice John Marshall Harlan, known as “The Great Dissenter” for his seminal opinions in Civil Rights Cases (1883) and Plessy v. Ferguson (1896), suggested in dissent that there were significant health risks related to professional baking, and that it was the job of state legislatures, not the Supreme Court, to investigate and make laws over such issues of workers’ health and safety. Harlan was a great believer in the sanctity of the Fourteenth Amendment; he had argued in both Civil Rights Cases and Plessy for a reading of the amendment he believed its framers had intended, as a safeguard for the individual rights of citizens. He also believed that while corporations were valuable social and economic entities, the impact of their business on society was too vast to go unregulated, and thus did not deserve extra-judicial protection from the court. Justice Oliver W. Holmes joined Harlan in dissent in Lochner, questioning whether the Fourteenth Amendment should be used to “enact Mr. Herbert Spencer’s Social Statics.” Spencer was one of the key promoters in America of the creed of Social Darwinism, so what Holmes was criticizing was the formula by which ordinary people were left to struggle for survival because the court had endowed corporations with the rights of individuals, thus denying efforts by the people’s government to assist the people themselves. The economist Herbert Croly captured the matter succinctly in warning that
a simple and poor society can exist as a democracy on a basis of sheer individualism. But a rich and complex industrial society cannot so exist; for some individuals, and especially those artificial individuals called corporations, become so very big that the ordinary individual … cannot deal with them on terms of equality. It therefore becom
es necessary for these ordinary individuals to combine in their turn, first in order to act in their collective capacity through that biggest of all combinations called the government, and second, to act also in their own self-defense, through private combinations, such as farmers’ associations and trade unions.45
A ruling such as was handed down in Lochner was what Samuel Gompers had in mind when he had urged, in his testimony before the Pullman Strike commission, that the Constitution, conceived and written in a preindustrial age, was being misused to impede the flow of needed reforms in labor relations. At the time of the Constitutional Convention in 1787, Gompers said,
men knew scarcely anything of the existence of the power of steam; they knew nothing at all of electricity; they had no suspicion even in the days of Adam Smith of the steam engine and the electric motor or the telegraph, the telephone, the application of steam and electricity to industry; and yet the laws that had been made in the period … are sought to be applied to modern industry and modern commerce…. I submit that industry and commerce cannot go back to conform to old thoughts, old theories, and old crusty customs of law, but that the law, sooner, must be changed to conform to the changed industrial and commercial conditions. It was revolution that saved France, it was reform that saved England, it is a question what will save America.46
