1. American Federation of Labor, “Report of Proceedings of the Fifteenth Annual [1895] Convention of the American Federation of Labor” held at New York, New York, 9-17 December, in Proceedings of the American Federation of Labor 1893, 1894, 1895, 1896 (Bloomington, IL: Pantagraph Printing and Stationery Company, 1905): 100.

2. Versions of this thesis appear in Leon Fink, “Labor, Liberty and the Law: Trade Unionism and the Problem of Constitutional Order,”Journal of American History 24, no. 3 (December 1987); William E. Forbath, Law and the Shaping of the American Labor Movement (Cambridge, MA: Harvard University Press, 1991); William E. Forbath, “Courts, Constitutions, and Labor Politics in England and America: A Study of the Constitutive Power of Law,”Law and Social Inquiry 16, no. 1 (Winter 1991); Victoria C. Hattam, “Institutions and Political Change: Working Class Formation in England and the United States, 1820-1896,” in Sven Steinmo et al., eds., Structuring Politics: Historical Institutionalism in Comparative Analysis (Cambridge, UK: Cambridge University Press, 1992); Victoria C. Hattam, Labor Visions and State Power: The Origins of Business Unionism in the United States (Princeton, NJ: Princeton University Press, 1993); and Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, MA: Belknap Press, 1992).

3. Forbath, Law and the Shaping, 3; Hattam, Labor Visions and State Power, 8-9.

4. United States Strike Commission, “Report on the Chicago Strike of June-July 1894,” in Executive Documents of the Senate of the United States for the 3rd Session of the 53rd Congress 1894-95 2, no. 7 (Washington, DC: Government Printing Office, 1895): XL; Almont Lindsey, The Pullman Strike: The Story of a Unique Experiment and of a Great Labor Upheaval (Chicago: University of Chicago Press, 1948): 160-3 and 274-5.

5. Hattam, “Institutions and Political Change,” 157-63; Hattam, Labor Visions and State Power, 38-9, 65-9, 139-57. In one Pennsylvania case in 1881, for example, the presence of a brass band was found to be an act of intimidation within the terms of the existing act.

6. Forbath, Law and the Shaping, 61-2, 193-8.

7. Forbath, Law and the Shaping, 37-58, 177-87, has compiled a list which shows that, from 1885 to 1900, the courts undermined far more labor-backed legislation than they upheld. Hattam, Labor Visions and State Power, 152-3, provides a similar list for Pennsylvania and New York.

8. Forbath, Law and the Shaping, 69-71 and 95-7.

9. Hovenkamp argues that Congress may have intended the act to apply to labor as well. See Herbert Hovenkamp, Enterprise and American Law, 1836-1937 (Cambridge, MA: Harvard University Press, 1991): 229. But according to Perlman, few thought that it did at the time. See Selig Perlman, A History of Trade Unionism in the United States (New York: Macmillan, 1923): 154.

10. Gompers himself makes this point to the U.S. Strike Commission established in the wake of the Pullman dispute. See United States Strike Commission, Report on the Chicago Strike, 188-205; and Stuart B. Kaufman and Peter J. Albert, eds., Unrest and Depression, 1891-94, vol. 3 of The Samuel Gompers Papers (Urbana: University of Illinois Press, 1989): 576. These developments are also raised by a couple of delegates during the AFL's 1894 debate on the political program. See American Federation of Labor, An Interesting Discussion on a Political Programme at the [1894] Denver Convention of the American Federation of Labor (New York: American Federation of Labor, 1895): 30-1.

11. Similar conclusions are drawn by Martin Shefter in “Trade Unions and Political Machines: The Organization and Disorganization of the American Working Class in the Late Nineteenth Century,” in Ira Katznelson and Aristide Zolberg, eds., Working Class Formation (Princeton, NJ: Princeton University Press, 1986); and by Kim Voss in The Making of American Exceptionalism (Ithaca, NY: Cornell University Press, 1993), although Shefter focuses on a broader range of instruments of state repression and Voss focuses on state acquiescence in the face of employer repression.

12. This comparison with Britain is developed at length by Hattam in “Institutions and Political Change,” 166-71; and in Labor Visions and State Power, 180-203. In particular, Hattam highlights the different reception which courts gave to the repeal of conspiracy law in the two countries. In both countries unionists sought legislation which would give them immunity from prosecution for criminal conspiracy, and in both cases these political efforts were successful. Britain passed legislation in 1871 which it strengthened in 1875. Similar legislation was enacted in Pennsylvania in 1869 and in New York in 1870. But while the legislation was similar, the way that the courts applied it was very different. Whereas the British courts deferred to the will of Parliament, the U.S. courts interpreted the new law in such a way as to undermine its effect. The American unionists did not just give up; rather, they pressed the legislature to pass a better, more tightly worded law. This is indeed what happened in 1881, in 1882, and again in 1887 in New York and in 1872, 1876, and 1891 in Pennsylvania. But the courts continued to convict unionists for criminal conspiracy, until finally they did abandon the criminal conspiracy doctrine, only to shift to the widespread use of injunctions based on the Sherman Anti-Trust Act, the Interstate Commerce Act, and a new doctrine of civil conspiracy. The overall effect was that union organizations continued to be vulnerable. The consequence, according to Hattam, was that the two union movements drew different conclusions about the fruitfulness of political activity. See also Forbath, “Courts, Constitutions, and Labor Politics.”

13. Gompers himself often made this distinction. See, for example, Kaufman and Albert, Unrest and Depression, 1891-94: 143; and American Federation of Labor, Report of Proceedings of the Sixteenth Annual [1896] Convention of the American Federation of Labor held at Cincinnati, Ohio, 14-21 December, in Proceedings of the American Federation of Labor 1893, 1894, 1895, 1896 (Bloomington, IL: Pantagraph Printing and Stationery Company, 1905): 20-1.

14. The AFL's persistent efforts to achieve ever greater immigration restrictions represent the one major exception to this. See Gwendolyn Mink, Old Labor and New Immigrants in American Political Development: Union, Party and State, 1875-1920 (Ithaca, NY: Cornell University Press, 1986); and Robin Archer, “Why Is There No Labor Party? Class and Race in the United States and Australia,” in Rick Halpern and Jonathan Morris, eds., American Exceptionalism? US Working Class Formation in an International Context (London: Macmillan, 1997).

15. Skocpol, Protecting Soldiers and Mothers, 206-17. The AFL was only prepared to accept social legislation for “dependent” workers like women, children, and government employees.

16. Michael Rogin, “Voluntarism: The Political Functions of an Antipolitical Doctrine,”Industrial and Labor Relations Review 15, no. 4 (July 1962): 530-4; and Skocpol, Protecting Soldiers and Mothers, 210-2.

17. American Federation of Labor, An Interesting Discussion, 21-5. This relatively short but intense debate is worth further attention in its own right, for it reveals much about various delegates' attitudes toward family life and the relationship between individuals and the state. It also reveals a widespread sense of superiority toward less respectable unskilled and insecure workers and their families.

18. American Federation of Labor, An Interesting Discussion, 25-62. The advocates of the court repression thesis also highlight some remarks by the Cigar Makers' leader, Adolph Strasser, which certainly do foreshadow the radical rejection of positive political goals which emerged in the early twentieth century. See American Federation of Labor, An Interesting Discussion, 19-20. But, again, these remarks are not indicative of the attitude of the convention as a whole. I will consider Strasser's remarks in greater detail below.

19. American Federation of Labor, An Interesting Discussion, 4-13 and 62-4.

20. The evidence which follows draws principally on reports of the Proceedings of the American Federation of Labor and its predecessor, and on the excellent collection of documents which Stuart Kaufman and his collaborators have published in the various volumes of The Samuel Gompers Papers.

21. See Stuart B. Kaufman, ed., The Making of a Union Leader, 1850-86, vol. 1 of The Samuel Gompers Papers (Urbana: University of Illinois Press, 1986): 22, 28, and 83-4; and Samuel Gompers, Seventy Years of Life and Labor, vol. 1 (New York: E. P. Dutton, 1925): 75.

22. Kaufman, The Making of a Union Leader, 1850-86, 71-2 and 139.

23. Ibid., 235. The resolution went on to say “that this shall not preclude the advocacy to office of a man who is pledged purely and directly to labor measures.” So here from the outset is the pressure group conception of politics: opposition to any involvement in partisan politics alongside legislative lobbying and a limited electoral strategy of supporting labor's friends and punishing its enemies, the same conception which Gompers defends in his Presidential Report to the AFL's 1894 convention. American Federation of Labor, “Report of Proceedings of the Fourteenth Annual [1894] Convention of the American Federation of Labor” held at Denver, Colorado, 10-18 December, in Proceedings of the American Federation of Labor 1893, 1894, 1895, 1896 (Bloomington, IL: Pantagraph Printing and Stationery Company, 1905): 14.

24. The question of what relationship the unions should have to political parties was at the center of the factional conflicts in the cigar makers' union. For documentary evidence of this, see Kaufman, The Making of a Union Leader, 1850-86, 247-74. For the conflict with the Knights see ibid., 275-86.

25. American Federation of Labor, “Report of the Sixth Annual Convention of the Federation of Organized Trades and Labor Unions of the United States and Canada” and “Report of Proceedings of the First Annual [1886] Convention of the American Federation of Labor” held at Columbus, Ohio, 8-12 December, in Proceedings of the American Federation of Labor 1881, 1882, 1883, 1884, 1885, 1886, 1887, and 1888 (Bloomington, IL: Pantagraph Printing and Stationery Company, 1905): 16.

26. The New York State Workingmen's Assembly (of which Gompers was president) also endorsed nine other Democrat and Republican politicians and called for the defeat of one Republican. See Kaufman, The Making of a Union Leader, 1850-86, 446-7. In the light of this, Kaufman interprets Gompers' support for George as merely an extension of the pressure group strategy of endorsing the friends of labor and calling for the defeat of its enemies. But Gompers himself did not see it this way. Speaking to a mass meeting of tobacco workers, he made it clear that while he had always opposed independent political action by unions in the past, he now thought that the time had come for workers to select as well as vote for candidates. See Stuart Bruce Kaufman, Samuel Gompers and the Origins of the American Federation of Labor: 1848-1896 (Westport, CT: Greenwood Press, 1973): 142; and Kaufman, The Making of a Union Leader, 1850-86, 433-44.

27. American Federation of Labor, Proceedings of the [1886] Convention, 16; Kaufman, The Making of a Union Leader, 1850-86, 387 and 453-6.

28. See Stuart B. Kaufman, ed., The Early Years of the American Federation of Labor, 1887-90, vol. 2 of The Samuel Gompers Papers (Urbana: University of Illinois Press, 1987): 45; and American Federation of Labor, “Report of Proceedings of the Second Annual [1887] Convention of the American Federation of Labor” held at Baltimore, Maryland, 13-17 December, in Proceedings of the American Federation of Labor 1881, 1882, 1883, 1884, 1885, 1886, 1887, and 1888 (Bloomington, IL: Pantagraph Printing and Stationery Company, 1905): 26, 29-30.

29. For evidence of this see the annual proceedings of the AFL. For 1888 see p. 13, for 1889 see p. 23, for 1890 see pp. 12-21, for 1891 see p. 40, and for 1892 see pp. 12-3 and 29. The AFL's rejection of partisan politics was strongly reinforced by a debate in 1889 and 1890 about the affiliation of the New York Central Labor Federation. On one level, the debate was about whether the Socialist Labor Party, as a party, should be allowed to affiliate to a union organization. This question drew the delegates into explicit discussion of the relevance of independent labor politics. For a useful collection of documents on this dispute, including extracts of a verbatim report of the 1890 convention debate, see Kaufman, The Early Years of the American Federation of Labor, 1887-90, especially 386-408.

30. On the concept of a “political opportunity structure,” see Herbert P. Kitschelt, “Political Opportunity Structures and Political Protest: Anti-Nuclear Movements in Four Democracies,”British Journal of Political Science 16, no. 1 (January 1986); and Sidney Tarrow, Power in Movement: Social Movements, Collective Action and Politics (Cambridge, UK: Cambridge University Press, 1994).

31. This argument is set out particularly clearly by Hattam in “Institutions and Political Change,” 166; and Labor Visions and State Power, 74-5. Similar arguments can be found in Forbath, Law and the Shaping, xi and 97; and Skocpol, Protecting Soldiers and Mothers, 226-9. Note that the argument does not discriminate between different types of political action. If it is right, then neither pressure group politics nor partisan politics would be worth pursuing because the courts are said to be immune to political influences whatever their source.

32. See Fink, “Labor, Liberty and the Law,” 916; and Daniel R. Ernst, Lawyers Against Labor: From Individual Rights to Corporate Liberalism (Urbana: University of Illinois Press, 1995): 165-90.

33. Robert G. McCloskey, The American Supreme Court (Chicago: University of Chicago Press, 1960): 111 and 151-5. For similar observations see Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill, 1962); Jesse H. Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (Chicago: University of Chicago Press, 1980); and Walter Murphy, Congress and the Courts: A Case Study in the American Political Process (Chicago: University of Chicago Press, 1962). For a contrary view see William Lasser, The Limits of Judicial Power: The Supreme Court in American Politics (Chapel Hill: University of North Carolina Press, 1988).

34. Stuart S. Nagel, “Court-Curbing Periods in American History,”Vanderbilt Law Review 18, no. 3 (June 1965).

35. The Norris-LaGuardia Act, which put an end to the widespread use of labor injunctions, was passed by 362-14 in the House and 75-5 in the Senate in 1932 during the last year of the Hoover administration and was upheld by the Supreme Court in 1938. See Forbath, Law and the Shaping, 163. The Wagner Act, which established the right of unions to organize and to bargain collectively, was passed without a roll call vote in the House and 63-12 in the Senate in 1935 and was upheld by the Supreme Court in 1937. See William E. Leuchtenburg, Franklin D. Roosevelt and the New Deal, 1932-1940 (New York: Harper and Row, 1963): 150-52; and Kenneth Finegold and Theda Skocpol, “State, Party, and Industry: From Business Recovery to the Wagner Act in America's New Deal,” in Charles Bright and Susan Harding, eds., Statemaking and Social Movements: Essays in History and Time (Ann Arbor: University of Michigan Press, 1984): 180.

36. Stephen Skowronek, The Politics Presidents Make: Leadership from John Adams to George Bush (Cambridge, MA: Belknap Press, 1993): 314; and David Plotke, Building a Democratic Political Order: Reshaping American Liberalism in the 1930s and 1940s (Cambridge, UK: Cambridge University Press, 1996): 148-9.

37. For evidence of the significant influence which business interests exerted on high judicial officeholders in the late nineteenth century, see Philip H. Burch, Elites in American History: The Civil War to the New Deal (New York: Holmes and Meier, 1981): 103-10.

38. Lindsay, The Pullman Strike, 147-75; Philip S. Foner, History of the Labor Movement in the United States: Vol. II (New York: International Publishers, 1955): 266-7. Lindsay concludes that “Between the Department of Justice and the federal judiciary there seemed to be a sympathetic understanding, and almost every move initiated by the former received the hearty support of the latter,” (p. 274). Both, however, were acting contrary to the wishes of Governor Altgeld of Illinois.

39. In one extraordinary case in 1902, the Colorado legislature refused to pass an eight-hour law even after the state's constitution had been amended to ensure that such a law would be constitutional. See Perlman, History of Trade Unionism, 214; and Forbath, Law and the Shaping, 47. For other examples see Melvyn Dubovsky, The State and Labor in Modern America (Chapel Hill: University of North Carolina Press, 1994): 13; David Montgomery, Citizen Worker: The Experience of Workers in the United States with Democracy and the Free Market During the Nineteenth Century (Cambridge, UK: Cambridge University Press, 1993): 153; and Forbath, Law and the Shaping, 49, 148-50.

40. There was, however, a strong presumption in favor of reelecting sitting judges. See James Willard Hurst, The Growth of American Law: The Law Makers (Boston: Little, Brown and Co., 1950): 130; and Kermit L. Hall, “Progressive Reform and the Decline of Democratic Accountability: The Popular Election of State Supreme Court Judges, 1950-1920,”American Bar Foundation Research Journal (1984, no. 2): 362-5.

41. For the history of judicial selection see Evan Haynes, The Selection and Tenure of Judges (Newark, NJ: National Conference of Judicial Councils, 1944); Hurst, The Growth of American Law; Russell D. Niles, “The Popular Election of Judges in Historical Perspective,”The Record of the Association of the City of New York, 21, no. 8 (November 1966); and Lawrence M. Friedman, A History of American Law (New York: Simon and Schuster, 1973).

42. On turnout see Hall, “Progressive Reform,” 356-9 and 361. On nominations see Hurst, The Growth of American Law, 129-34; and Hall, “Progressive Reform,” 354 and 365. On politicians turned judges see Lawrence M. Friedman, American Law (New York: W. W. Norton and Co., 1984): 65; and G. Alan Tarr and Mary Cornelia Porter, State Supreme Courts in State and Nation (New Haven, CT: Yale University Press, 1988): 55. Forbath, Law and the Shaping, 33-4; and Hattam, Labor Visions and State Power, 156, are both aware that the election of judges seems to pose a problem for the court repression thesis, but each mentions it only in passing before setting it to one side. Forbath, for example, suggests that elections were simply a vehicle that enabled professional associations of lawyers to exercise “decisive influence” over judicial selection. This ignores the lively elections of the late nineteenth century and the enduring influence of party politics in the selection process. Professional associations of lawyers did increase their influence somewhat in the early twentieth century (and again in the 1930s and 1940s), but this would not have affected union attitudes toward political action in the 1880s and 1890s.

43. Kermit L. Hall, “Children of the Cabins: The Lower Federal Judiciary, Modernization and the Political Culture, 1789-1899,”Northwestern University Law Review 75, no. 3 (1980): 448, 456, and 464; Friedman, A History of American Law, 328; and Friedman, American Law, 65.

44. Indeed, Australian union leaders hoped to move closer to the American system. In its first platform in 1890, and again in 1892, the NSW Labor Party called for the direct election of magistrates. See Noel Ebbels, The Australian Labor Movement 1850-1907: Historical Documents (Sydney: Hale and Iremonger, 1983): 212 and 216.

45. Every one of the advocates of the court repression thesis appeals to this comparison. See Fink, “Labor, Liberty and the Law”; Forbath, Law and the Shaping; Forbath, “Courts, Constitutions, and Labor Politics”; Hattam, “Institutions and Political Change”; Hattam, Labor Visions and State Power, and Skocpol, Protecting Soldiers and Mothers.

46. American Federation of Labor, Proceedings of the [1895] Convention, 16.

47. Forbath, Law and the Shaping, 61-2.

48. The defeat of the Iron and Steel Workers' union in the 1892 Homestead strike eliminated unionism, not just at Homestead but in most of the mills in the Pittsburgh region, and the defeat of the American Railways Union in the 1894 Pullman strike led to its complete collapse. See Perlman, A History of Trade Unionism, 135, 196-7.

49. Gary Marks, Unions in Politics: Britain, Germany and the United States in the Nineteenth and Early Twentieth Centuries (Princeton, NJ: Princeton University Press, 1989): 45-48 and 204-10; Archer, “Why Is There No Labor Party?” 58-9.

50. Gompers emphasizes this in his 1892 presidential report. See American Federation of Labor, Report of Proceedings of the Twelfth Annual [1892] Convention of the American Federation of Labor held at Philadelphia, Pennsylvania, 12-17 December, in Proceedings of the American Federation of Labor 1889, 1890, 1891, 1892 (Bloomington, IL: Pantagraph Printing and Stationery Company, 1906): 12.

51. German unions found themselves in a situation like this following the passage of the anti-socialist law in 1878, although the role of the courts was being played by Bismarck, who was accountable only to the unaccountable kaiser. The incentives generated by state repression in these circumstances help to explain why unions like the printers' adopted a submissive posture, detached themselves from politics, and reconstituted themselves as a mutual aid association. Note, however, that even in these circumstances, it was not long before new craft unions were formed which again established close ties to the social democratic party. See John A. Moses, Trade Unionism in Germany from Bismarck to Hitler 1869-1933: Vol. 1. 1869-1918 (London: George Prior, 1982): 66-87; and Marks, Unions in Politics, 137.

52. Hovenkamp, Enterprise and American Law, 207; Ernst, Lawyers Against Labor, 165-90.

53. Foner, History of the Labor Movement in the United States: Vol. II, 117-9; and Leon Fink, Workingmen's Democracy: The Knights of Labor and American Politics (Urbana: University of Illinois Press, 1983): 25-6 and 30-1. For Gompers' speech see Kaufman, Gompers Papers Vol. 1, 431.

54. Perlman, A History of Trade Unionism, 139; Chester McArthur Destler, American Radicalism 1865-1901 (Chicago: Quadrangle Books, 1946): 165-6.

55. See Marks, Unions in Politics, 72.

56. Since 1894 the AFL had lobbied every session of Congress about anti-injunction legislation. See Marks, Unions in Politics, 71; and Marc Karson, American Labor Unions and Politics, 1900-1918 (Carbondale: Southern Illinois University Press, 1958): 29-30.

57. Marks, Unions in Politics, 71-2; Forbath, Law and the Shaping, 110; and Ernst, Lawyers Against Labor, 131.

58. For a detailed analysis of the legal and political effects of these cases see chaps. 6, 7, 8 and 9 of Ernst, Lawyers Against Labor. See also Mink, Old Labor and New Immigrants, 185-6 and 212; Marks, Unions in Politics, 71-3, and 202-3; and Forbath, Law and the Shaping, 92-4.

59. Perlman, A History of Trade Unionism, 198-207; Karson, American Labor Unions and Politics; Stephen J. Scheinberg, “Theodore Roosevelt and the A.F. of L.'s Entry into Politics, 1906-1908,”Labor History 3 (1963); and Ernst, Lawyers Against Labor, 111, 135-7, and 146.

60. Foner, History of the Labor Movement in the United States: Vol. II, 145; Gerald Friedman, “Worker Militancy and Its Consequences: Political Responses to Labor Unrest in the United States, 1877-1914,”International Labor and Working-Class History 40 (Fall 1991): 8-9; and Montgomery, Citizen Worker, 152-3.

61. American Federation of Labor, An Interesting Discussion, 19-21.

62. In his autobiography, Seventy Years, Gompers himself makes a similar point in an oft-quoted passage from a chapter titled “Learning Something of Legislation.” Commenting on attempts by the Cigar Makers' Union in the early 1880s to secure legislation outlawing sweatshop production in tenements, Gompers writes, “Securing the enactment of a law does not mean the solution of the problem.... The power of the courts to pass on the constitutionality of a law so complicates reform by legislation as to seriously restrict the effectiveness of that method.” Having twice had legislation overturned by the courts, the union decided to adopt a new strategy and place pressure on the employers directly through industrial action. In this way, he claims, “we accomplished through economic power what we had failed to achieve through legislation.” Note, however, that it is not clear how much was in fact accomplished in this way since tenement production seems to have continued until new technology made it obsolete. These comments by Gompers and Strasser are repeatedly cited by advocates of the court repression thesis. For Gompers see Forbath, Law and the Shaping, 40-2; Hattam, “Institutions and Political Change,” 164-5; Hattam, Labor Visions and State Power, 159-60; and Skocpol, Protecting Soldiers and Mothers, 227. For Strasser see Forbath, Law and the Shaping, 54; Forbath, “Courts, Constitutions, and Labor Politics,” 17-8; Hattam, “Institutions and Political Change,” 164; Hattam, Labor Visions and State Power, 157-8; and Skocpol, Protecting Soldiers and Mothers, 228-9.

63. Skocpol shows how an incentive like this helped to draw state federations of labor into support for a number of broad positive social reforms. AFL wariness of middle-class proponents of positive social reforms in the progressive era weakened not just the social reformers but also the AFL's own ability to gain the legal immunities it desperately sought. See Skocpol, Protecting Soldiers and Mothers, 206-27, 229-31, and 242.

64. Minimum wage regulations, the Wagner Act, and the Social Security Act were all upheld one after the other in 1937. See McCloskey, The American Supreme Court, 175-6.

65. Skocpol, Protecting Soldiers and Mothers, 233-9 and 258. Having argued in favor of the court repression thesis to explain federal union policy, Skocpol points to the different internal institutional structures of state and federal union organizations and the different interests which result to explain their different attitude toward positive political goals. See Skocpol, Protecting Soldiers and Mothers, 317-33 and 239-45. This is to shift from an explanation based on judicial repression and the political opportunity structure of the state, to one based on the different kinds of working-class interests which the state and federal labor organizations represented.

66. Strasser's intervention is cited over and over again. See Forbath, Law and the Shaping, 54; Forbath, “Courts, Constitutions, and Labor Politics,” 17-8; Hattam, “Institutions and Political Change,” 163-6: Hattam, Labor Visions and State Power, 157-8; and Skocpol, Protecting Soldiers and Mothers, 228-9.

67. In addition to these mistakes, they fail to note that Strasser had long opposed political action for reasons which had nothing to do with court repression. Originally a pro-political “Lassallean,” he began to oppose political action around 1876. See Kaufman, Samuel Gompers and the Origins of the American Federation of Labor, 65. The fact that Strasser was now appealing to something like the court repression thesis does not necessarily imply that this was in fact the main reason why he opposed the political program. They also overemphasize this one piece of evidence and fail to give sufficient attention to the fact that the majority of delegates rejected Strasser's argument and voted for the eight-hour plank.

68. Arguably, Forbath is less inclined to do this. In a footnote to an article, he seeks to distinguish his position from Hattam's by making a point which is similar to mine. See Forbath, “Courts, Constitutions and Labor Politics,” 20-1. But see also Hattam, Labor Visions and State Power, 164-5, where she also seems to be aware of the problem.

69. This can be seen in the private correspondence of various AFL officials. See, for example, Destler, American Radicalism, 183; Foner, History of the Labor Movement in the United States: Vol. II, 290; Kaufman, The Early Years of the American Federation of Labor, 1887-90, 364; and Kaufman and Albert, Unrest and Depression, 1891-94, 585.

70. For example, for 1892 see American Federation of Labor, “Proceedings of the [1892] Convention,” 13; and Kaufman and Albert, Unrest and Depression, 1891-94, 202-4. For 1894 see American Federation of Labor, “Proceedings of the [1894] Convention,” 14, and the following paragraph. For 1896 see American Federation of Labor, “Proceedings of the [1896] Convention,” 22. Recall also that this fear was voiced even when the AFL took the exceptional step of endorsing independent labor politics in 1886. On this see American Federation of Labor, “Proceedings of the [1886] Convention,” 16; and Kaufman, The Making of a Union Leader, 1850-86, 453-4.

71. American Federation of Labor, “Proceedings of the [1894] Convention,” 14.

72. American Federation of Labor, An Interesting Discussion, 6, 7, 8, 12, 36, 44, 46, 49, 51, and 56.

73. Eugene V. Debs, Liberty: A Speech by Eugene V. Debs (Terre Haute, IN: E. V. Debs and Co., 1895). Also in Eugene V. Debs, Writings and Speeches of Eugene V. Debs (New York: Hermitage Press, 1948); and in Leon Stein, ed., The Pullman Strike (New York: Arno, 1969). See also Nick Salvatori, Eugene V. Debs: Citizen and Socialist (Urbana: University of Illinois Press, 1982): 147-74.

74. Note especially the contributions of delegate Brentell of the iron and steel workers' union and delegate Penna of the miners' union at the AFL's 1894 convention. See American Federation of Labor, An Interesting Discussion, 42 and 52-4. For evidence based on the voting record of all delegates over a number of years see Marks, Unions in Politics, 206-7 and 235-8.

75. Kaufman, The Early Years of the American Federation of Labor, 1887-90, 45; Foner, History of the Labor Movement in the United States: Vol. II, 154-6; Richard Oestreicher, Solidarity and Fragmentation: Working People and Class Conscience in Detroit, 1875-1900 (Urbana: University of Illinois Press, 1986): 180-7; and Fink, Workingmen's Democracy, 26-7.

76. Destler, American Radicalism, 162-211.

77. Kaufman and Albert, Unrest and Depression, 1891-94, 584-7.

78. American Federation of Labor, “Proceedings of the [1894] Convention,” 14.

79. Christopher L. Tomlins, The State and the Unions: Labor Relations, Law and the Organised Labor Movement in America, 1880-1960 (Cambridge, UK: Cambridge University Press, 1985): 52-7; Kaufman, Samuel Gompers and the Origins of the AFL, 3-55.

80. Various sources provide evidence of factional hostilities and the sectarian tone which these conflicts produced as well as the personal involvement of Gompers, Strasser, and others. On the Cigar Makers' Union see Kaufman, The Making of a Union Leader, 1850-86, 247-9, 272-3, and 365-7; on conflict between unions and the Knights see Kaufman, The Making of a Union Leader, 1850-86, 159-63 and 468; and on conflict with the SLP see Kaufman, The Early Years of the American Federation of Labor, 1887-90, 191ff, and 386-409; and Kaufman and Albert, Unrest and Depression, 1891-94, 16-7.

81. American Federation of Labor, An Interesting Discussion, 36, 40. McBride was neither an “SLP-socialist” nor a “Strasser-socialist.” As he put it, “I am a trades unionist that never was anything else, and know nothing about the socialist party or anything in connection with the disputes.”

82. American Federation of Labor, An Interesting Discussion, 55.

83. In a typical contribution, delegate Weismann predicted that “If we are unsuccessful to rescue [the AFL] out of the hands of these men who come here under disguise to cut the life out of the trades unions, if we let it be surrendered into their hands, disintegration will follow.” See American Federation of Labor, An Interesting Discussion, 38. Weismann, it should be said, had his own anarchist factional axe to grind, but there are others who made similar contributions. See the remarks of delegates Lennon, Gompers, Strasser, Pomeroy, Daley, Macarthur, and O'Sullivan in American Federation of Labor, An Interesting Discussion, 8, 10, 20, 35-6, 47, 49, 55, and 56.

84. Although Gompers believed that the dangers he warned against were real, he did have other reasons for emphasizing them. See Kaufman, Samuel Gompers and the Origins of the AFL, 216-22. It was certainly convenient to paint those he opposed as anti-union. This put the proponents of independent labor politics on the defensive and forced them to defend their standing as unionists rather than enabling them to make a substantive case for partisan politics. Gompers also had a strong personal incentive to do this since his position as president was at stake.

85. American Federation of Labor, An Interesting Discussion, 15 and 62.

86. Ibid., 42 and 52.

87. American Federation of Labor, “Proceedings of the [1892] Convention,” 13; “Proceedings of the [1894] Convention,” 14. In January 1887, just weeks after Henry George's strong showing in New York, Gompers was already doubting whether the workers who voted for George had really “sever[ed] their connection with the two dominant parties.” See Kaufman, The Early Years of the American Federation of Labor, 1887-90, 9. Every year thereafter he can be found warning against the dangers posed by workers' divergent party loyalties. See, for example, ibid., 121, 364, and 391; American Federation of Labor, “Proceedings of the [1892] Convention,” 9 and 13; American Federation of Labor, “Report of Proceedings of the Thirteenth Annual [1893] Convention of the American Federation of Labor” held at Chicago, Illinois, 11-19 December, in Proceedings of the American Federation of Labor 1893, 1894, 1895, 1896 (Bloomington, IL: Pantagraph Printing and Stationery Company, 1905): 12; American Federation of Labor, “Proceedings of the [1894] Convention,” 14; and American Federation of Labor, “Proceedings of the [1896] Convention,” 22.

88. On Powderly see Fink, Workingmen's Democracy, 24 and 26. On McBride see American Federation of Labor, “Proceedings of the [1895] Convention,” 15.

89. See the remarks by delegates Macarthur, McGuire, Lennon, and Pomeroy in American Federation of Labor, An Interesting Discussion, 6, 12, 43, 45, and 46.

90. See Gompers' president's report in American Federation of Labor, “Proceedings of the [1893] Convention,” 12. He made a similar point the previous year. See American Federation of Labor, “Proceedings of the [1892] Convention,” 9.

91. American Federation of Labor, An Interesting Discussion, 46.

92. Ibid., 6.

93. Montgomery, Citizen Worker, 147.

94. Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (Cambridge, UK: Cambridge University Press, 1982).

Unions,Courts,and Parties: Judicial Repression and Labor Politics in Late Nineteenth-Century America

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