Friday, June 01, 2007

Taft-Hartley: Looking for Law in All the Wrong Places

Mark Graber

Professor Brian Tamanaha's important ruminations on the relationship between law and politics remind me that many humanistic political scientists believe that more behavioral political scientists and many law professors look for law in all the wrong places (this phrase is stolen from John Brigham of the University of Massachusetts). Rather than looking first to legal controversies for legality, we might first turn to political controversies that do not get resolved into legal controversies, or at least instances where something gets lost in translation. In this instances, I think, we are likely to see the some aspects of the complex way in which law influences both political and judicial behavior.

The following is a note on the Taft-Hartley Act that I have just drafted for a text I am working on. I should add that my co-editors bear no responsibility for this note and (along with many others I have drafted) there is a fair and intelligent possibility the note will never see the light of day, other than this blog. The note is appended to Wickard v. Fillburn, the case which is conventionally understood as a judicial abandonment of any effort to limit federal power under the commerce clause.

1. Consider the influence of law and politics on the debate over the Taft-Hartley Act (1947). The Taft-Hartley Act was the most important piece of legislation passed by the first Republican Congress to sit after the New Deal. Passed over President Harry Truman’s veto, the measure increased federal power to issue injunctions against strikes, declared various union activities to be unfair labor practices, gave legal sanction to state laws banning closed union shops, and required those union leaders to take oaths declaring they were not and had never been Communists. Liberal Democrats abhorred the measure. President Truman in a radio address declared that the bill was "bad for labor, bad for management, and bad for the country." Nevertheless, although Truman condemned numerous aspects of the Taft-Hartley Act in a lengthy veto message, he never asserted that Congress lacked power under Article I to pass the Taft-Hartley Act. His objections were strictly on policy grounds. With one exception, the Supreme Court unanimously agreed that Taft-Hartley did not raise any constitutional issue of federal power. Justice Frankfurter in American Communications Ass'n v. Douds (1950) treated as trivial what fifteen years previously might have been a substantial commerce clause issue. "It is too late in the day," he stated, "to deny to Congress the power to promote industrial peace in all the far-flung range of interstate commerce. To that end, Congress may take appropriate measures to protect interstate commerce against disruptive conduct not fairly related to industrial betterment within our democratic framework." Constitutional debate in the courts was limited to whether Congress could consistently with the First Amendment require that union officials submit anti-Communist affidavits. Significantly, Truman did not attack this provision when condemning nearly other aspect of Taft-Hartley.

Given the near certainty that some of the justices on the Supreme Court in 1950 probably shared Truman’s antipathy toward Taft-Hartley, why did the Supreme Court unanimously insist that the federal government had the power under the commerce clause to pass the most controversial provisions of that bill? If justices were voting as legislators and only on the basis of their policy preferences, the probability is very high that at least a few would declare the major provisions of Taft-Hartley unconstitutional? Remember that the Taft-Hartley Bill was the main legislative goal of the postwar Republican Congress and no-good reason existed in 1947 or 1950 to think that unions in the foreseeable future would enjoy more political support than management. Is the best explanation for the lack of constitutional debate over Taft-Hartley the previous liberal commitment to broad national power over commerce, a commitment that liberals could not immediately abandon when that power was exercised to the detriment of liberal causes?

During the three decades before the New Deal, courts frequently handed down anti-union rulings, while Congress either remained neutral or passed weakly pro-union legislation. [there is a footnote here to George Lovell's important book, Legislative Deferrals]. Imagine, however, that Taft-Hartley had been passed in 1912 and similar anti-union legislation in subsequent years. Might progressives have developed a jurisprudence emphasizing limits on federal power instead of, as was actually the case, a jurisprudence emphasizing limits on judicial power? How might these previous constitutional commitments have changed the constitutional politics of the New Deal?


It's a fascinating point. For an example of the same thing on the right, consider Scalia's and Thomas' view that the Due Process Clause imposes no limitations on juries imposing huge punitive damages awards. Certainly I assume that Scalia and Thomas are probably concerned about such awards on a policy level (and probably agree in substance with many of the points that Supreme Court majorities have made about them, i.e., that they are excessive compared to compensatory damages, that they punish defendants for out of state conduct not before the Court, etc.).

Nonetheless, because abortion and contraception shaped their view of the Due Process Clause, they oppose limitations on punitive damages awards. If the punitive damages issue had arisen first, perhaps they would have settled on a different theory of Due Process.

I agree with the original proposition that it's useful to look at different forms of controversy to understand the legal result (what would this be called? historical institutionalism?). But I'm a bit unclear as to how exactly the counterfactual proposal at the end of the note furthers this idea. It seems to me that there's already enough material in the record, so to speak, of labor issues during Reconstruction and the Progressive Era. In the absence of that history, it might make sense to speulate. But with a well-known backdrop, it just doesn't seem necessary to engage in a counterfactual exercise here, in that the leap from a nuanced idea to a more speculative suggestion seems at odds with the original approach.

If, on the other hand, the idea is that constitutional-level conceptions are simply the residue of earlier policy decisions, then I would respectfully suggest that we've been down that road before.

And on the other, other hand, maybe I'm just missing the point.

I think Mark's point is valid, but I think it says less than we think. People of course are shaped by the ideas of the preceding and current debates of the day, but still, it's not as if the Supreme Court in 1950 was any more hostile to labor union interests than previoius Supreme Court eras stretching back to the 1880s, for example. In fact, one could say the Supreme Court, as an institution, has been almost consistently hostile to labor unions.

Still, as Dilan points out, Scalia and Thomas have dissented in the punitive damage/Due Process cases--though I wonder if they would if they knew their dissents that would require corporations to pay more punitive damage awards, they would continue with their dissents. It seems like a "freebie" that carries no immediate consequences.
If that sounds cynical, it is because I am cynical about what I see in so many of their other decisions.

While it's an excellent point, I think it's important to note that, by 1950, perhaps the Justices who may have had policy differences with Taft-Hartley would not want to undermine the expansive interpretation of the commerce clause that was embraced during the New Deal.

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