THE NATIONAL LABOR RELATIONS ACT OF 1935 WAS A VICTORY FOR CAESARISM OVER
THE STATES AFTER A CONTINUOUS BATTLE FOR TWO DECADES
The most common disregard by Congress and the
President of the Tenth Amendment, forbidding the Nation to usurp powers not
granted to it, and especially to stay away from the governmental field of the
States, has been in its persistent attempts, under the cloak of the Commerce
Clause and of the General Welfare Clause, to invade the police field of the
States — for the protection and care of the health, safety, morals,
education, and general well-being of the people — and take jurisdiction of
the liberties and living of men.
The Commerce Clause authorizes Congress "to regulate commerce with
foreign nations, and among the several States" — not within
the States. The General Welfare Clause is discussed in another section.
By NLRA Congress displaced a Union of States by a Nation
After half a century of notable failures and some burrowing successes, that
invasion won completely through the National Labor Relations Act of 1935. By
that act Congress usurped police control of all workers in the United States.
Could Hamilton have foreseen that, he would have been dumbfounded.
"I confess," he wrote in No. 17 of The Federalist, "I
am at a loss to discover what temptation the persons intrusted with the
administration of the General Government could ever feel to divest the States
of the authorities of that description" — legislation "for the
individual citizens of America."
Briefly, the act declared an "emergency" to exist because of the
"burdening" of commerce and the "obstructing" of it by
strikes arising out of labor disputes; and, to keep the "flow" of
commerce — not alone interstate commerce covered by the Commerce Clause,
but all commerce — uninterrupted, it set up a Labor Board to which
disputes between workers and employers should be taken for hearing and
decision. As there could be no suspension of production by any strike that
would not "affect" or "obstruct" both intrastate and
interstate commerce at least a little, all workers and employers were thus
brought under the Commerce Clause, written respecting interstate commerce only,
as its language so plainly shows.
Before that only a small part of the workers of the country were within
reach of Congress by virtue of the Commerce Clause — those employed by
railroad companies, telegraph and telephone companies, and aviation companies.
The great body of them lived and worked subject to the police power of the
Representatives of the States in Congress, by passing the act, disparaged
and diminished their commonwealths.
By a complete about-face Supreme Court sustained Congress
Overriding its own decisions for half a century, on the powers of Congress
over interstate commerce, and reversing the Judgments of four Circuit Courts of
Appeals of three judges each, the Supreme Court of the United States, in an
opinion by Chief Justice Hughes, Justices McReynolds, Van Devanter, Sutherland,
and Butler dissenting, upheld (301 U. S. 1) on April 12, 1937, two months after
the President proposed to "pack" the Court, and while the proposal
was still before Congress, the National Labor Relations Act as a valid exercise
of the granted power to Congress to regulate commerce "among the several
States." The very title gives the lie to the strained recitations in the
Act in a make-believe that it is a regulation of commerce and not a labor law.
The promise was in those recitations that the operation of the Act would put an
end to strikes and the disorders and losses which had attended them, which was
not, of course, a subject of national jurisdiction.
Legislation had numerous precedents
The National Labor Relations Act had been preceded by many acts for the
usurpation by Congress and the President of power over concerns of the States.
The tyrannies spawned by the Labor Board in applying the National Labor
Relations Act were a long time in coming.
When Franklin D. Roosevelt was Governor of New York, he protested in behalf
of the States against the dishonest and lawless use of the Commerce Clause by
Congress and the President to occupy forbidden ground in the States. Speaking
on July 16, 1929, before a conference of governors at New London, Connecticut,
he condemned the "stretching" of the Commerce Clause by Congress to
cover cases not embraced by grants of power to it in the Constitution (italics
Governor Roosevelt declared against such legislation
"Our Nation has been a successful experiment in democratic government
because the individual States have waived in only a few instances their
sovereign rights. . . .
"But there is a tendency, and to my mind a grievous tendency, on the
part of our National Government, to encroach, on one excuse or another, more
and more upon State supremacy. The elastic theory of interstate commerce, for
instance, has been stretched almost to the breaking point to cover certain
regulatory powers desired by Washington. But in many cases this has been due to
a failure of the States, themselves, by common agreement, to pass
legislation necessary to meet certain conditions."
Importance of commerce in history
The Commerce Clause, for the strict observance of which Governor Roosevelt
was rightly solicitous, contains a principle dating back as far as Magna Carta
(1215), when King John, faced by armed men, signed an agreement not to
interfere in the right of Englishmen to go to and fro in commerce, and abroad
and return, except only in an exigency of war.
Englishmen in commerce were "in pursuit of happiness," which the
Declaration of Independence later denominated a right from the Creator, for the
protection of which "governments are instituted among men."
The speeches and writings of Edmund Burke in behalf of the American
colonists make clear that the restrictions on commerce by the government of
England were far more burdensome and intolerable than was "taxation
without representation," usually given as the cause of the American
Revolution. All products for sale had to go to England — in English ships.
All things that they had to buy they were obliged to buy in England — for
transportation in English ships. Raw material ready for manufacture had to go
to England for that purpose. This interference with commerce (only one of many
hard regulations) destroyed shipbuilding, which had become of great importance,
put an end to manufacture, and cut off commercial communication with other
Constitution designed to make commerce free
It was obstruction by States of this right to engage in commerce that
contributed much to the breakdown of the government under the Articles of
Confederation. And the third grant of power to Congress in the Constitution
which followed (after taxing and borrowing) is "to regulate commerce . . .
among the several States."
Congress is authorized to regulate commerce so that it will not be
obstructed as it was before — that is, it is to promote commerce.
It is not to obstruct it affirmatively, any more than the early States could
rightly do so, by legislation like the Norris-LaGuardia Law, which cripples men
in commerce in the maintenance in court of their constitutional rights —
and their inherent rights. It is not to obstruct commerce negatively by failure
to guard the rights of those engaged in it, as in the toleration of costly and
Commerce most important activity of man
The history of commerce makes clear that legally it is the most important
right of men, not to be trifled with by kings or others in power. Nevertheless,
for a third of a century obstructions to commerce have been so nearly
continuous as to condemn the Government at Washington for default of duty under
the Commerce Clause.
Five years before the National Labor Relations Act of Congress, Governor
Roosevelt condemned illicit ideas which he afterwards sanctioned as President.
In a radio address in 1930 he again took up States' rights and home rule and
said that with "a great number ... of vital problems of Government, such
as the conduct of public utilities, of banks, of insurance
companies, of agriculture, of education, of social
welfare, and of a dozen other important features . . . Washington must
not be encouraged to interfere." (Italics inserted.)
But Roosevelt, like Supreme Court, did turn-around
With every one of those "features," Congress, taking orders from
President Roosevelt, did interfere, to the denial of the liberty of man
to engage unhampered by his Government or by his fellows in pursuits which had
never before been regarded in the United States as subjects for political
meddling. Never before regarded, because no fancy had ever found in the
Constitution anything even suggesting the power in Congress to engage in or
control such activities.
Yet, during the first eleven years of the Act, from 1935 to 1945 inclusive,
there were 37,383 work stoppages, involving 16,827,305 workers and the loss of
wages for 175,896,235 man-days.
N.L.R.B. failed of purpose proclaimed
For the eleven years before the National Labor Relations Act, 1924 to
1934, inclusive, the work stoppages were 11,565, affecting 5,829,339 workers,
about one-third of the number involved in stoppages during the 11 years
following the Act.
Even more deplorable than those losses to the workers was the brake put on
production of food, clothing, housing, and other things required by a people in
sore need, who had shown every willingness to do their part in the conduct of
Many of those strikes were attended by the worst disorders, sometimes by
bloodshed. Plants were seized by strikers and the owners excluded from them.
Picketing was of the most violent sort.
Against those manifestations of lawlessness, which appeared in all parts of
the country, the authorities of the States did nothing, or next to nothing. The
United States looked on. There was generally a breakdown of law.
A picture of countrywide performances
What was going on all over the country all during the war is illustrated by
this official statement of the Employment Relations Board of the State of
Wisconsin, issued on December 27, 1946 (italics added):
"It can no longer be assumed, as it was when the first order of
this board was made in May of this year, that the leadership of the
organization now on strike intends to be law-abiding citizens.
"Events transpiring since the entry of the order and its enforcement by
a judgment of the Circuit Court of Milwaukee County clearly indicate that
the leadership of this union entertains no respect for the law, agencies
designated to administer it, or the courts, but intends to prevent by
any methods, legal or illegal, the use of the company's premises by the
company, or the pursuit of work by employees of the company desiring to
Previous orders of the Board had been disregarded. As the quotation shows,
the strike at the plant of Allis-Chalmers had been on since May preceding. All
the powers of unionism had been concentrated on Allis-Chalmers to compel it to
establish the closed shop and thereby deny to Americans the liberty to work
under conditions of their own choosing.
Was the conduct described in Wisconsin treasonable?
The Constitution defines one of only two acts of "treason against the
United States" as "adhering to their enemies, giving them aid and
Were not the unceasing strikes which were waged in essential industries from
one end of the war to the other of great "aid and comfort" to Germany
What did the Department of Justice of the United States do to protect the
Government in its war endeavor and the American in his liberty?
Not until the head of the United Mine Workers notified the Secretary of the
Interior, who was operating the coal mines under one of the many illegal
seizures of property, without compensation, committed by Government during the
war, that it would terminate its working agreement at midnight, November 20,
1946, did the United States show mettle befitting such an occasion. This time
it had been put on the spot.
Government of great Republic driven to corner
The United States could not say that the duty to act was on the States, or
use any other of the evasions which it had employed as encouragement to strikes
against private industries. So it had its Department of Justice bring a suit on
November 18 for injunction in the United States Court in the District of
Columbia, which immediately issued an order restraining the head of the union
and the miners from carrying out the notice. Nevertheless, a gradual walkout of
miners began on November 18, and by November 20 "a full-blown strike was
in progress," the Supreme Court said in sustaining the action of the trial
judge in fining for contempt the head of the union $10,000 and the miners as a
body $3,500,000. It authorized the reduction of the fine imposed on the miners
to $700,000 on condition that they permanently obey the order of the court.
Simple case pointed way to managing labor disputes
That shows how nicely those disputes could be handled if Congress and the
States (which have really fostered labor troubles) would remit them to the
courts, where all other people having disputes are obliged to go. Congress does
not interfere in controversies between individuals, or between corporations, or
between corporations and individuals, or between States, or between
associations of men. Why should it interfere in disputes between employee and
The questions in dispute are justiciable (for the Judiciary) where
negotiation or arbitration fails and the next step is the strike, with
suspension of production for the needs of the people and the country, and
disorder, sabotage, and personal peril. At that point society must assert its
paramount interest, as it did in the instance just described, and require the
adjudication of the dispute in its courts.
Labor decisions show courts afford remedy
Since the decision of the Supreme Court of the United States in 1928 holding
(262 U. S. 522) invalid a statute of Kansas setting up an Industrial Court to
hear and decide controversies between employee and employer, including
differences over wages, the interest of the public in the continuity of service
has become more and more recognized. The National Labor Relations Act of July,
1935, brought all of the employees of the country within the Commerce Clause of
the Constitution under the pretense that it was necessary to prevent strikes
from interrupting the free flow of commerce to the discomfiture and damage of
the people. And in 1934 the Supreme Court sustained (291 U. S. 502) a law of
New York setting up a Milk Control Board to fix maximum and minimum prices for
milk, thus taking away the right of the parties to contract. The welfare of the
public and the interest of the Nation have been so grossly disregarded during
the last two decades that views on "the liberty of contract," and on
"the right to strike" and plunge society into confusion and distress,
have undergone change. The act of the legislature of Kansas setting up the
Industrial Court would probably be sustained today.
Labor controversy has ceased to be personal to parties
When, for illustration, employment was on a small scale, the law was that an
employee assumed the risk of injury by the carelessness of a fellow worker and
he was therefore not entitled to damages from the employer. But as employment
became stupendous, laws making the employer liable (as an operating cost) for
injuries to a worker, whether there was negligence or not, were upheld by the
courts as valid exercise of the police power of the States in the interest of
society. So the controversy between employee and employer is no longer a matter
exclusively personal to them.
Congress should get out of labor politics, in which it has too long
performed a discreditable as well as an unconstitutional part.
Government now conducted with respect to elections
The capers that have been cut at Washington during the last three decades
make one wonder whether sight has been entirely lost of the purpose of
Government as laid down in the Declaration of Independence, namely, to secure
man against his fellows, and more especially against those whom he has chosen
for his servants in public office. The activities of administrations have been
plainly to favor, in view of the next election, great voting blocs like the
labor organizations, the people on the farms (who, subsidized for years, turned
the Presidential election in 1948), and the political bosses who
"deliver" the votes of many corrupt cities. The platforms of both
parties have offered shamelessly to "give every thing to every body"
in those classes.
Meanwhile, the people, who set up Government "to secure these
rights" which came to them from the Creator, "among which are life,
liberty and the pursuit of happiness," are stripped of their possessions
with a system of ruthlessness rarely exampled in the history of tyranny.
Although the Criminal Code of the United States provides that a fine of $100
and imprisonment for six months, or both, shall be imposed upon anyone who
shall "knowingly and wilfully obstruct the passage of the mail," and
although the opening of mail is severely punished, the Executive Department of
the Government took no action respecting the obstructing and opening in 1937 of
mail addressed to Americans engaged in their work and surrounded by pickets
trying unlawfully to deny to them this liberty.
The nonaction by the Chief Executive, who is enjoined by the Constitution to
"take care that the laws be faithfully executed," looked to the
beholder like sanction of the illegalities.
Washington friendly to the sit-down strike
While the Government at Washington assumed to legislate by the National
Labor Relations Act respecting all labor, regardless of whether it might be
engaged in interstate commerce (of which only it has jurisdiction), a spokesman
for the White House let it be known that sit-down strikes in various parts of
the country, by which owners were forcibly dispossessed of their property by
their employees, were matters of concern, not to the Nation, but to the States!
As before indicated, the debilitated States generally concurred in such
The Secretary of Labor was reported by the Press to question at first
whether the seizure and detention of plants by sit-down workers was illegal!
While employees of a steel manufactory at Canton, Ohio, were working under
siege by an army of pickets, airplanes dropped leaflets to discourage the
workers, saying, "Our members are well fed and happy. Relief is being
arranged for their families. Four departments of the United States Government
are fighting for our side."
On March 23, 1947, the Associated Press reported from Milwaukee that
"the Allis-Chalmers strike, one of the most bloody and turbulent in recent
history, ended today when the striking UAW-CIO Local 248 voted to return to
work without a contract."
That shows that the workers themselves had tired of the long misleading by
Communism in strikes in United States
As the chief principle of the tactics of Communism is to provoke disorder
and profit by it, the foregoing record, made mostly while the Republic was in
the perils of war, compels the question whether Communist influences guided
that disgrace to "government under law."
Earl Browder, for years head of the Communist Party in the United States,
and twice a candidate for the Presidency of this Nation, reported to the
Congress of the International Communist Party in Moscow on July 18, 1935:
"How was our party able to penetrate the masses and emerge from
isolation? A great role was played by leaders in the strike movement and in the
work of the party among the unemployed. In some of the most important strikes,
the San Francisco general strike for one, the Communist Party had a decisive,
And the great Government of the United States was not only unable to deport
the alien who fomented and led that strike, but it also came around to issuing
citizenship papers to him!
In What Is Communism? it is made clear (p. 163) by Browder, a native
of the United States, that the plan of Communism is to take away liberty and
property by armed force:
"The Revolution is carried out by the great masses of the toilers. The
Communist Party, as the vanguard of the most conscious toilers, acts as their
organizer and guide."
And again (pp. 164, 165):
"In the revolutionary situation the Communist Party . . . wins some of
the armed forces to its side, and leads the effective majority of the
population to the seizure of State power. . . . Above all, they need the armed
An attempt to destroy an industry
Although not so wide in its reach to people as the National Labor Relations
Act of 1935, the law of Congress of 1886, forty-nine years before (amended and
extended in 1902), taxing oleomargarine ¼¢ a pound, and 10¢ a
pound when colored, was fully as bad an invasion of the police field of the
States. Agriculturists, a voting power, put the bills through Congress in
protection of dairy butter. In addition to the destructive tax on the colored
article (while colored butter was not taxed), the heavy license tax on
manufacturers, on wholesalers, and on retailers, and the regulations regarding
packing, labeling, and permits were obstructive and costly. The manufacturers
abandoned coloring and left that to the consumers. Notwithstanding the
handicap, oleomargarine grew steadily in favor. It was used in the navies of
the world, including our own.
Those laws, attacked as intended to destroy an industry, as an encroachment
upon the police field, and as working a deprivation of property without due
process of law, were sustained (195 U. S. 27) in 1904 by the Supreme Court of
the United States in an opinion by Justice White, with dissent by Chief Justice
Fuller and Justices Brown and Peckham.
In 1888 the Supreme Court had upheld (127 U. S. 678) a law of Pennsylvania
(1885) which forbade the making and selling of anything to be used as butter,
or in lieu of it, out of any substance "other than unadulterated milk or
cream." Justice Field dissented from the opinion written by Justice Harlan
chiefly on the ground that the Court had lost the distinction between
regulation and prohibition. To be sure, a State may regulate the
manufacture of foods so as to secure purity and prevent fraud. But Pennsylvania
had no more right or power to suppress the manufacture of oleomargarine, made
and sold without deception, than it had to prevent the making of marmalade.
Wide as the police power is, it must be exerted with regard for rationality,
liberty, and the right to property.
Of the case arising in Pennsylvania, Judge Dillon, once on the Federal
Bench, wrote in Municipal Corporations and also in Law and
Jurisprudence in England and America this sound and complete comment:
"The record of the conviction of Powell for selling without any
deception a healthful and nutritious article of food makes one's blood
If the police power of Pennsylvania could not extend that far, how could
Congress, without any police power at all, get a seat in the game of politics?
In March, 1950, a discreditable record of 64 years was ended by Congress
when it repealed the legislation by a vote of 202 to 106 in the House and 59 to
20 in the Senate.
The unbelievable guilelessness of the American
In all worlds of fabulists and fictionists no state of things is exhibited
which is at once so preposterous and so potentially calamitous as that there
should be tolerated a party against freedom and possessions in a land where the
Constitution twice guarantees security to Liberty, Property, and Life!
Why have Senators and Representatives, who have been sent by the people of
the States through the years to represent them in the Congress of the Union of
States, failed to maintain their States in their constitutional position in
that Union? They have made the State a kind of satrapy of the central power.
What Congressmen and Governors have done to sovereign States
The degraded position to which the States have descended in the estimation
of our Government was shown by a meeting in 1944 in St. Louis of the governors
of 26 States, who deplored the fact that for 11 years not a Governor had been
called to the White House for consultation.
When President Truman took office in 1945, the Republican members of
Congress proceeded to the White House to tell him that they would help him in
all ways consistent with their political beliefs. On leaving the White House,
the Republican leader in the Senate said to newsmen that he had not been on the
premises since the party in power took office in 1933.
Well, the governors complaining at St. Louis were not heard in protest when
the representatives of their States in Congress were originating or supporting
bills for weakening their commonwealths and widening the authority of the
National Government. And as for the treatment of members of Congress by the
White House, they had let go of their constitutional reins.
At the 42nd annual convention of the governors of the States, at White
Sulphur Springs, West Virginia, on June 19, 1950, there was a quite general
expression of the view that "Federal aid" should be relied upon by
the States to carry their projects of flood control, reclamation, irrigation,
electric power, and the like.
The presiding governor sought to prevent "stump speeches on the
obligation Washington has in the development of the West." But the
governor of California thought it "perfectly logical to ask the Federal
Government for help in irrigation, reclamation, and power projects: we repay
every cent and pay interest on Federal moneys going into such projects."
No one rose to inform him that the Constitution gives no authority to
Congress to lend money at interest or otherwise for any purpose. Nor was he
reminded that banks, and others having the right to lend, provided the
necessary money for all great projects in the building of the United States
from the beginning down.
The governor of New Jersey protested the proposal for Federal aid. He could
not understand how any governor could "go on record for a balanced Federal
budget and at the same time have his hand out for millions for reclamation,
irrigation, and public power." He said that "New Jersey would have
nothing to do with Washington, that it can and does finance its own projects,
and at cheaper interest rates than the Federal Government can borrow
It is somewhat reassuring that one governor out of 48 had been sufficiently
educated to declare for constitutional procedure.
The meeting of governors revealed the great need, not so much for
"Federal aid," as for a school for giving constitutional instruction
to the executives of the States. Such a school might accept members of
Congress. Something must be done toward teaching those in office.
In the days of the horse and buggy
In the autobiography of Senator Hoar it is said that if any group went to
the White House and brought back directions on policy, they would be made to
regret it. For sixteen years or more the White House has been permitted by
Congress to usurp direction of policy.
The States must back-track to where the writers of the Constitution set them
— or where they set themselves, for they made the Constitution.
And the schools must so teach the Constitution that governors of States will
know better than to resign their great offices to take inferior seats in
And the President must be elected by the constitutional method.
When the States have exercised the power which they reserved to themselves
by section 2 of Article I, to prescribe the qualifications of voters for
members of Congress as well as for candidates for local offices, by making a
certificate of graduation in the study of the principles of our constitutional
system a condition of registering for voting, then we shall have a better
situation in Congress and out.
And in the days ahead
And when the States have abolished the straight ticket by restoring or
putting into effect the Australian ballot, which was emasculated for the aid of
the illiterate followers of political leaders or bosses, then American
elections will express the competence of the people for self-government.
And when the States have brought back the constitutional election of the
President and put him in his place to stay, and thereby removed the need for
Corrupt Practices Acts of Congress, our country will then be again "the
land of the free."
The States, which intended when they wrote the Constitution to manage the
country largely, should return to that duty.
1. For the six years from 1940 to 1945, inclusive, covering
the whole time of World War II, strikes took place as follows:
2. Long after that part of the text was written, the
Supreme Court of the United States, in an opinion rendered on January 3, 1949,
sustaining a law of North Carolina and a constitutional provision of Nebraska
forbidding employers to enter into contracts obligating themselves to exclude
persons from employment because they are or are not members of labor unions,
examined the case of the Industrial Court of Kansas and said that hours and
wages can be fixed by law in the public interest That fulfills the prophecy of
3. The bill of particulars drawn by the governors proposed
the resumption by the States of their constitutional functions. It condemned
the acquisition by the United States of the lands of the States, the usurpation
by Washington of unemployment insurance and unemployment services, the
derogatory "conditions' fixed by the Federal Government to grants in aid
of States for public works, the attempt of the Administration "to
undermine and abandon our traditional National Guard," the entry of the
United States into competition with insurance companies, the plans to control
from the National Capital the field of medicine, the development of water
resources without any recognition of the superior rights of the States, and
some other acts of total indifference to the existence of local governments, as
leaving for ten years "entire regions of our country" without
"representation in the Cabinet or administrative agencies of the Federal
Government." The crowning insolence was the failure of the President to
invite any governor to the White House for an exchange of views.
Of course, the things complained of were brought about by the incompetence
or delinquency of members of Congress from the States.
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