[Old notes on David Montgomery’s great book Citizen Worker: The Experience of Workers in the United States with Democracy and the Free Market during the Nineteenth Century (1993).]

What Alexander Troup wrote in 1891 applies just as well to the present: “We prate religion… We indulge in morbid sentimentalism over ‘happy homes,’ we spread ourselves in eagle flights of oratory over our American institutions and the liberty and equality we enjoy under the law, while at the same time we are manufacturing paupers to an extent which places it among our leading industries.”

Quite early in the nineteenth century, in fact, the courts were favoring the manufacture of paupers just as much as they do today. As far as they were concerned, Montgomery writes, “the basic principles of the republic required defense of individual initiative in economic life against both governmental and social interference.” He gives an example: “In 1837 the Massachusetts Supreme Court made this clear while reasserting that a farm laborer hired for six months who had quit at the end of five was entitled to no pay. The judges declared, ‘Laborers, and especially that most improvident part of them, sailors, may excite sympathy; but in a government of equal laws, they must be subject to the same rules and principles as the rest of the community; and a court of justice is almost the only place where sympathy should have no influence.’” Yes, that’s one conception of justice, a conception exquisitely suited to a capitalist society. In justice there is no place for sympathy; only impersonal law—in particular a law that upholds class hierarchies, by being grounded in private property and individualism—ought to be recognized.

“During the next fifteen years [after 1877] state and federal courts vied with each other to underwrite the legal claims of property owners in a market economy against the collective initiatives of working people.” Coal miners, being the most militant, were the most likely to face indictments and convictions for “conspiracy.”

Montgomery sums up his first chapter:

In conclusion, democracy hastened the destruction of onerous forms of personal subordination to masters, landlords, and creditors that American working people had historically faced. The voting rights extended to white male wage earners in the early nineteenth century [by significant portions of the gentry who “were prepared to advance their own political fortunes by soliciting the votes of humble farmers and artisans”[1]] provided them with both liberty of action and political influence, which helped them eliminate master-and-servant laws, imprisonment for debt, and seizure of personal property for nonpayment of rent. During Reconstruction the same developments were repeated for southern black workers, though under much more fiercely contested circumstances. [Black workers, of course, had far less success than white workers had earlier. Because of the differences in the labor regimes, or the modes of production, between North and South.]

The new law that replaced the old, however, was defined not by the daily needs of wage earners, but by the emerging requirements of wage contracts for labor, rental of urban housing, expanded circulation of commodities, and the promotion of economic innovation. The legal status of employers and employees was basically defined through common law by the legal profession rather than by elected legislators. [That tradition has continued to the present. Extra-democratic means are necessary to fashion a legal framework for the accumulation of capital by the rich.] Court rulings translated the private initiatives celebrated by Jeffersonian Republicanism into the doctrine of the “free market.” That doctrine, in its turn, enshrined rules established by employers in the legal definition of the wage contract. It also justified severe restriction of the use working people could make of their democratic rights and powers through their own collective initiatives or through governmental action…

In his chapter entitled “Policing People for the Free Market,” Montgomery recounts a revealing incident in Cincinnati, Ohio in 1886. “The city’s employers refused to reduce the hours of labor to conform to a new state law, which made eight hours a legal day’s work. When thousands of workers paraded through the streets to demand obedience to the law, they found their city infested by almost two thousand guardsmen [National Guardsmen], eight Gatling guns, and a battery of heavy artillery—defending the manufacturers who defied the law!” A nice illustration of the real purpose of military and police authorities—not to defend the law but to defend the powerful.

As you know, late in the nineteenth century the courts had quite an array of tools to attack workers. Public exposure of working conditions by the labor press brought suits for libel; state laws that threatened to impinge on companies’ control of their own business affairs were invalidated; but the injunction, of course, was the favorite method to disrupt labor actions. Citywide boycotts of firms, which could be quite effective, were usually judged illegal—for revealing reasons. “While workers defended their hundreds of local boycotts as the sort of private arrangements to promote the common welfare that were favored by America’s Jeffersonian legacy, courts impugned them precisely because their motivation was not self-interested but ‘sympathetic.’ By introducing community moral standards into economic behavior, they charged, boycotts were ‘combinations of irresponsible cabals or cliques’ that threatened to bring ‘an end of government.’” Ha! Morality and sympathy have no place in the capitalist economy, you irresponsible idealists! Whatever isn’t inspired by greed is against the law!

In general it's a useful book, not least as a reminder of how utterly partial (not impartial or neutral) American law and political institutions have always been.

[1] In other words, it wasn’t out of the generosity of their hearts that members of the elite allowed wage-earners the right to vote. It was because, to quote the always perceptive Tocqueville, “as it was impossible to wring the power from the hands of a people which they [the upper classes] did not detest sufficiently to brave, their only aim was to secure its good will at any price.” The consequence was that “the most democratic laws were…voted by the very men whose interests they impaired.” Another of history’s infinite ironies.