by Ahmed White, author of The Last Great Strike: Little Steel, the CIO, and the Struggle for Labor Rights in New Deal America
Several weeks into Donald Trump’s presidency, millions of Americans have skipped work, walked off their jobs, or otherwise demonstrated in protest of his policies. Many others are planning to do so in the weeks ahead. For those of us who study strikes and protests, these developments are at once thrilling and portentous, particularly in light of the peculiar place that strikes occupy in our country’s history. For most of American history since the late Nineteenth Century, it was quite a normal thing for people to go out on strike. In 1937, for instance, over 7 percent of American workers went out on strike; in 1946, that number reached 10 percent. Even as recently as 1970, almost six million men and women spent some time out on strike. But recently strikes have been exceedingly uncommon with only a handful each year. Even most union members have never been on strike.
Why are strikes so uncommon? The reasons are complicated, but one important thing stands out. The strikes of the 1930s and 1940s, especially, were extremely effective. They built the modern labor movement, upheld the New Deal against reactionary attacks, and ensured the foundations of the postwar political system. But precisely because they were so effective, the strikes were the targets of relentless counterattack by powerful business interests and their allies in government. At first, the dominant response to strikes in this period was a rather simple and venerable one. Strikes were considered presumptively illegitimate and often met with naked force, only crudely justified by law. Put into practice, this approach left probably 200 workers dead in the 1930s alone. However, later in that decade, even as some of the most violent strikes were still unfolding, the approach to strikes was rebuilt around the notion that, while the right was guaranteed by federal law and the U.S. Constitution, it was far from absolute and had to yield if strikers were violent or coercive. Although superficially reasonable, the real import of this new approach was to make the kinds of strikes that promised to be effective also the most costly for strikers and most likely to be found unlawful. And not because only disorderly strikes could be effective, but because even the anticipation of coercion or violence on the part of strikers was enough to justify arresting them, firing them, enjoining their picket lines, and using lawful force against them. Nor was the fact that strikers might have been provoked to act in these ways much of an excuse. The most notable example of this new approach can be found in one of the most tragic episodes in the history of protest: the 1937 “Little Steel” Strike, in which steel companies and their allies killed at least sixteen strikers in order to break a strike which they had caused, and yet paid almost no penalty for doing so. So it was that the repression of strikes was brought in line with modern notions of law and order.
Of course this all happened a long time ago, in the unique context of the labor movement and the labor law. But the approach to the law and politics that underlie it are broadly established in American law and provide the basis of an important caution to anti-Trump protesters who may not be familiar with this story. That caution is this: These protests may never be particularly effective. So far, their effects seem pretty modest and the response to them relatively mild. But if they do succeed in challenging powerful interests in government and business, they are not unlikely to become the target of a campaign of repression which will paint them as irresponsible enemies of the social good, regardless of how protesters have actually comported themselves. The history of striking in America tell us that you can bet on that.
Ahmed White is a Professor of Law at the University of Colorado, Boulder. His scholarship centers on the intersection of labor and criminal law and on the concept of rule of law.