In the end, the violence of the Southwest Strike exposed the contradiction between “free labor” as interpreted by workers themselves and “freedom of contract” as interpreted by the courts. By the midpoint of the southwestern railway strikes, the courts were interpreting even peaceful efforts to curtail strikebreaking as a threat to the freedom of contract and had responded to requests for injunctive relief beyond an initial focus on roads that were bankrupt and under the supervision of federal judges. There was, in short, nothing logically “inherent” about the expanded power of the judiciary: up to 1886, courts had been more self-restrictive in their interventions; beginning with the Southwest Strike, they became much more sympathetic to employer complainants. 55
There is no denying the tensions that Gilded Age workers experienced with the application of free-labor doctrines to labor-management relations. Still, it was not just the justices who embraced the “sanctity” of the employment contract. Organized labor, too, for the most part did not reject but rather embraced the labor contract as a vessel of influence in the labor market. In its view, the legalism of contracts needed only to be extended to the group rather than individual rights of employees. As union-friendly legal giant Louis Brandeis explained three years before his appointment to the Supreme Court: “The employee must have as much power and as much freedom in making a contract with the employer as the employer has in making a contract with him, and for that purpose it is necessary that employees should be bound together in some union; because the individual employee is ordinarily helpless against the employer.” 56 Whatever its specific terms, the contract explicitly conferred union recognition, the crux of legitimacy. That it served just that purpose was all too apparent, for example, to Charles Francis Adams, president of the Union Pacific Railroad. In earlier philosophical musings, Adams had allowed that there needed to be some adjustments to allow the “representative, republican system of government” to catch up to the “corporate industrial system,” and he even accepted a role for government in tempering railroad monopolies and unfair market competition. By 1891, however, he was notably bristling about the countervailing power and “excessive regulation” that railroad unionists had brought to bear on his business by substituting collective bargaining for the individual employment contract. 57
The coal industry proved the prime site for the development of what historian David Brody has called “the logic of workplace contractualism”; nowhere else were the “jealously held prerogatives of American management so constrained by contractually defined job rights.” As early as the 1860s, Pennsylvania anthracite miners had shrewdly embraced “market unionism,” calculatingly using work stoppages to reduce the coal supply and thus drive up prices. The movement notched a major breakthrough with the first “joint conference” in the bituminous fields in 1897 that established competitive wage scales across differentiated regions (except for the unions’ Achilles heel of West Virginia). It was precisely the contract system—at least when sustained by a militant rank and file—whom a latter-day Wobbly credited for turning “plain, humble, submissive [creatures] into … men.” 58
Perhaps the other most famous embrace of the labor contract and market unionism—this at the other end of the industrial hierarchy from coal miners—occurred among turn-of-the-century garment workers. In New York City the predominantly female shirtwaist strike of 1909 (or “Uprising of the Twenty Thousand”) combined with an industry-wide Cloakmakers’ strike the following year produced the Protocol of Peace—rationalizing a chaotic industry with standardized wages, hours, and working conditions, and ultimately corralling the larger manufacturers into a deal akin to those hatched by the mineworkers. Gaining a more stable and efficient labor force in exchange for higher wages, the major clothing manufacturers for an extended period bought into a system that historian Colin Gordon calls “regulatory unionism,” a system that contemporary labor journalist Benjamin Stolberg defined as “a sort of joint industrial syndicate of boss and worker.” 59
Finally, there was likely no more thorough—or inventive—labor adaptation of free-market principles than that of American merchant seamen, as reflected in their venerable leader Andrew Furuseth and his signature accomplishment, the Merchant Seamen’s Act of 1915 (aka La Follette Act). The “unfreedom” of the seamen—in particular, their lack of the right to quit during the course of a contract as well as their susceptibility to physical punishment by ship captains—propelled the public face of the desired maritime labor reforms. But here was a case where workers skipped nimbly from throwing off the last vestiges of industrial “vassalage” to a favored place within the global wage system, and all in the name of “free labor.”
To elaborate, for decades, U.S. seamen watched their numbers on the high seas plummet as merchants (including American ones) took advantage of less-regulated and lower-waged foreign-flag vessels through which to deliver international commerce. In the name of human rights (thus most famously ending criminal punishments for desertion), the La Follette Act consciously aimed to “free” maritime workers worldwide from the grip of segmented coercive national labor markets by applying its provisions to any ship of whatever flag that docked in a U.S. port. By its provisions, any sailor (of whatever nationality) could quit his ship in port and demand half-wages through U.S. courts while he sought his next contract on board a ship presumably paying the highest prevailing rates for maritime labor. As union advocates figured it, if “sea labor,” like any other commodity, were allowed to float—freed from draconian penalties against desertion—at market price, then all would-be employers worldwide would have to pay that price. “The remedy,” argued the Sailors’ Union in 1914, “is to set free the economic laws governing wages. 60 Yet, by way of remedy, a removal of the desertion penalty on U.S. ships alone would not do the trick. With average U.S. sailor wages nearly $40/month compared to British rates at $20–25, Swedes at $17 and Chinese at $7–9, restricted U.S.-only regulations would likely utterly drive U.S. ships from the sea. 61 Apply the new standards to foreign ships—what one La Follette bill partisan called a “free seas” principle—and you could expect a gradual convergence of all sea wages at a higher rate. 62 However mixed the returns (the subject necessarily of another study) from what was appropriately conceived at the time as a “radical” piece of legislation, the point here is that organized workers themselves were making their own confident, if selective, use of market-oriented thinking.
One way to read free-labor ideology in the Long Gilded Age, then, might be in the frame of what Eric Hobsbawm called “learning of the rules of the game.” Long-established notions of a “fair wage” were transformed as workers “recognized the nature of the trade cycle and increasingly demanded “what the traffic would bear.” 63 The era began with widespread suspicion of and desperate search for alternatives to the rapidly emerging wage system of labor, as arbitrated at once by market conditions and the coercive hand of employers. Over time, by this reading, labor accepted the inevitable, giving up a direct challenge to market and managerial hegemony in favor of incremental gains, registered by the most skilled or at least well-organized sectors of the working class.
Yet, in approaching the subject from the “bottom up,” or at least through the eyes of contemporary labor actors, such a functionalist scenario