Strikes, Picketing and the Constitution

The law's first response to organized labor activities was to attempt to define by judicial decision the ends for which employees might resort to economic weapons against an employer,' the weapons which they might use in pursuit of lawful objectives, and the occasions on which resort to economic weapons would be curtailed, as in the case of a nationwide railroad strike, because of the danger of a public catastrophe. The effort was unsuccessful. The judge-made law was neither a reflection of the enduring sentiment of the community nor a response to its needs. The subsequent reaction, which took its initial legislative form in the Clayton Act and reached fruition in the enactment of the Norris-LaGuardia Act and parallel state legislation, led to the virtual elimination of law from the resolution of industrial conflicts and left their adjustment to the processes of negotiation backed by economic weapons.

For a time, indeed, there was reason to believe that this view of labor policy had partly achieved constitutional status.