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Labor Regulation and Constitutional Theory in the United States and England

THE ORIGINS OF AMERICAN LABOR LAW are hidden by a view of the American past in which institutions prior to the seventeenth century take on a largely antiquarian cast and institutions prior to the late eighteenth century are of interest mainly for how they were transformed. It is arguable that legal doctrines and the social practices they regulate, and even their change over time, can be studied on their own, without attending to their longer provenance. But this cannot be said of their historical trajectory and therefore not of their developmental significance for the constellation of state and society of which they are a part. Only by getting the sequences right, the timing of given stabilities and changes against the background of others, does it become possible to identify turning points and influences. There is a great deal more at stake here than labor history. As this essay attempts to show, plotting the origins of American labor law reconfigures Anglo-American constitutional history and unsettles established theoretical ideas about American and British politics. The demonstration will focus on a single dimension of the American political system ordinarily thought to distinguish it from its English relative, namely, sovereignty, the final authority for making decisions within the government. The problem of sovereignty has been of enduring interest in democratic thought, for it bears directly upon the susceptibility of state policy to social action. According to the original theory of the U.S. Constitution, sovereignty lay outside government, in the people; but beginning in the early nineteenth century, a surrogate popular sovereignty was identified with the "rule of law," secured by the judiciary's