Legal Limits on Labor Militancy: U.S. Labor Law and the Right to Strike since the New Deal

Abstract

Since passage of the Wagner Act in 1935, U.S. labor law has guaranteed workers the right to strike. Three years later, the same system of law assured the employer's right to continue production in spite of a strike. This paper explores how the Wagner Act and its subsequent developments have simultaneously empowered workers and constrained their collective capacity to exercise control over the workplace. Historical legal analysis of Wagner and its applications, interpretations, and amendments indicates that the law has diminished the effectiveness of the strike, reduced the likelihood of its occurrence, and limited its legitimate forms, all the while sustaining the right to strike. I argue that by this careful balance of empowerment and constraint, the state has found the means of reconciling the structural constraints of capitalism—the imperatives of accumulation—with those of democracy— the demands of legitimacy.