By MICHAEL TAVOLIERO
NLRB v Jones & Laughlin Steel Corp (1937) established pristine and fabricated legal doctrines through case law. It marked one of the early instances where judicial pragmatism played a role in interpreting the U.S. Constitution as a “living” document.
This approach considers social and historical contexts rather than relying solely on strict textual reading of the Constitution.
Moreover, the case law-established doctrine of labor rights, particularly the principle of collective bargaining, is grounded in the broader framework of workers’ rights, now firmly established in U.S. labor law through the National Labor Relations Act of 1935.
In NLRB, the Court affirmed the constitutionality of the National Labor Relations Act, emphasizing that labor relations and the right to organize are essential for preserving industrial peace and preventing disruptions to interstate commerce.
Chief Justice Charles Evans Hughes, who wrote the opinion for NLRB, four years previously wrote the majority opinions which declared unconstitutional three center pieces of FDR’s legislative hegemony.
Reacting to the defeat of his New Deal legislation by the court, President Franklin D. Roosevelt resurrected a plan from the Woodrow Wilson administration to reorganize the court, which although the plan was never adopted by Congress impacted the political standing of the court.
In April 1937, the U.S. Supreme Court upheld the National Labor Relations Act by a 5-4 vote, which signaled a politically motivated change in the court’s jurisprudence. Chief Justice Charles Evan Hughes, a progressive Republican, was the deciding vote.
“A switch in time saves nine” was the media’s slogan regarding the change in the Court’s jurisprudence in the wake of Roosevelt’s court- packing furor.
Interestingly, the Fifth Circuit Court of Appeals opinion, which ruled against the Roosevelt Administration and was appealed in NLRB, clearly stated, “The Constitution does not vest in the Federal Government the power to regulate the relation as such of employer and employee in production or manufacture.”
In the U.S. Supreme Court’s NLRB dissent by Associate Justice James Clark McReynolds and joined by the other members of the Four Horsemen — Associate Justice Willis Van Devanter, Associate Justice George Sutherland, Associate Justice Pierce Butler, the dissenters stated: “It puts into the hands of a Board power of control over purely local industry beyond anything heretofore deemed permissible.”
During the Great Depression this changed the court’s judicial philosophy from the need of productive economic issues to the maelstrom of individual rights. The irony was explicit.
Effectively, the court’s upholding of the National Labor Relations Act aborted what remained of states sovereignty in favor of federal collective planning.
It took the doctrine of federalism and perverted it to tyranny.
Before NLRB, federalism yielded a splendid differentiation of sovereignty and authority between the states and the federal government. Simply, the federal government had the authority to regulate interstate commerce, and the states had authority to regulate intrastate commerce.
Hamilton in Federalist Papers No. 11 addressed the necessity of a unified regulation of trade among states under the federal government.
Madison wrote in Federalist No. 42 the need for a strong federal authority over interstate commerce to prevent states from imposing duties and tariffs on goods passing through their jurisdictions, which would hinder trade and economic unity. These duties would ultimately burden the producers of those goods and the consumers purchasing them.
The Constitution’s Commerce Clause was designed to address these economic concerns by granting Congress the power to regulate interstate commerce.
While social interactions and dealings between people are an essential part of society, the constitutional discussion and the intent behind the Commerce Clause were more centered on regulating economic activity to create a unified and efficient national market. The broader social interactions were not a focus, although they were implicitly acknowledged as part of the overall context in which commerce occurred to enable local productivity.
Intrastate commerce pronounced this as an essential local part of commerce which was guaranteed by the 10th Amendment.
Before 1937, intrastate commerce was largely regarded as the responsibility of the states. The Founders saw commerce as more than just large-scale buying and selling. It was a principle that safeguarded state sovereignty and autonomy within their own borders.
This autonomy enabled states to drive socioeconomic productivity and nurture interpersonal relationships within their communities. For the Founders, intrastate commerce was not merely about economic transactions but was deeply rooted in the social interactions among people at the local level, which, in turn, generated economic benefits.
This multiplicity of interactions made up the strength of the states and ultimately the federal government.
The original text of the Constitution and the Bill of Rights was designed to limit the federal government’s powers, reserving most powers to the states and the people. The expansive interpretation of the Commerce Clause that emerged later in NLRB was not envisioned by the Founders.
Specifically, in cases like NLRB v. Jones & Laughlin Steel Corp., the Court interpreted the Commerce Clause in a broader manner, thereby expanding congressional power over intrastate commerce. This interpretation was based on the Court’s view of the evolving needs of the nation and the economy, rather than a strict adherence to the original intent of the Founders. The decision reflected the Court’s judgment that federal regulation was necessary to manage the complexities of a modern, interconnected economy.
Supporters of the NLRB argue that the Constitution, as a living document, is intended to adapt to changing circumstances. They believe that the economic realities of the modern age necessitate a more flexible interpretation of the Commerce Clause to effectively address the complexities of an interconnected economy.
One can argue the merits and defects of these extra-constitutional doctrines and principles, but the real question for me is do they belong in American federal jurisprudence? Would these better serve the public in a state’s system?
NLRB v Jones & Laughlin Steep Corp amended the U.S. Constitution without ratification.
Michael Tavoliero is a senior contributor at Must Read Alaska.
There is good insight in this article as to the growth of centralized federal tyranny over states. I never before understood how the NLRA and NLRB are illegitimate and unconstitutional expressions of said tyranny.
No this isn’t.
Us having a strong federal government is what made America great to begin with.
We had a fair system. Working-class people could earn a decent wage, afford a house, and raise a family. Why? Because college tuition was subsidized, because the tax rate on the wealthy was at 91%. And unions were far stronger than they are now.
If you don’t want that, then what are you fighting for? You don’t want to America great.
Tyranny is allowing the oligarchs and tyrants to rule unchecked. Unions are a check on their power.
Unions are incorporated collectivism. The individuals rights are secondary to the union.
The unions control the votes thru work assignments and retirement.
A gilded cage.
Wow.
Please put the pipe down. Now.
Tyranny is a government that demands you put on your seatbelt, mandates what a man and a business should agree to in a contract to work for wages, extracts millions of dollars from work product over a lifetime, then returns a pittance to you at the end of your life. We are living in a bureaucratic tyranny, which began when FDR through the constitution in the bottom drawer and did whatever the hell he wanted. Unions are menetary support mechanisms for a bunch of desk jockeys, much the same as 501 c 3 corporations have become.
Another example of the slippery slope.
The States are relics of an obsolete and failed system of government. We should be look for ways to eliminate them not to empower them.
Secondly, the Founders’ original intent is stated in the Preamble. We don’t need creative interpretations of history and tradition to determine it. The Court is obligated first to rule in favor promoting the general welfare. In NLRB they did that by ensuring workers had an opportunity to bargain for a fair share of the profits they create.
Yes. Mr. Tavoliero’s opinion is genuinely so unintelligent.
The US has the power to regulate interstate commerce. That also includes managing inflation. Billionaires and millionaires cause inflation when they absorb all the wealth, then randomly reintroduce it into the economy.
Thus, labor needs to act as a check against this, by guaranteeing more of a flow of income to the working class.
This is econ 101, and Mr. Tavoliero didn’t take it.
You must have flunked your econ class. Inflation is the result of too much money chasing too few products. When you precious federal government fires up the printing press and turns out trillions in uselee paper dollars, it drives up the price of everything. And the Treasury has been doing it for decades because the centralized government in Washington DC has lost any vestige of responsibility to the US Constitution or the People. And, the US Constitution in no way guarantees anyone anyything except individual freedom from government oppression, something that has been repeatedly violated for decades.
Mr. T had a good subject to write about and maybe argue but the argument was done in 1937. The case was explained to NLRB and went back to Congress to regulate under the Commerce Clause. The US Supreme Court argued it only. It was not a ratification process. It was explained to NLRB that Congress has the power and duty to exercise authority of commerce interstate, nationally and internationally. The US Constitution did not have another ratification process because of the NLRB’s Administrative Law case. NLRB and unions have to cooperate.
Decentralized power. That’s what 50 individual states are. My vote in my state is more effective and powerful because it’s a greater percent of the local than the federal. If I make a mistake voting it’s easier to correct than a national mistake.
Given today’s fractured national political scene, I feel leaving states to decide labor relations issues would simply invite state-against-state economic warfare. Not a desirable economic environment.
This is a poor opinion article.
Mr. Tavoliero’s opinion is entirely based in ideology, and a flawed ideology at that.
Firstly, he ignores the fact that unions are in facf beneficial to the economy. When wealth begins to excessively pool on one side of the income bracket, guess what that does to the economy? It creates an oligarchy, where some have so much money they cannot spend it, while the bottom 99% of the population can barely afford rent. When that money builds up in the bank accounts of the wealthy, it then causes massive inflation when it’s reintroduced into the economy via the billionaires’ random whims, because the value of each individual dollar decreases because there are more dollars circulating in the system. So, the Fed has to raise interest rates to counter these random whims. This creates a very unstable and random system.
That’s why FDR, the vast majority of the United States Congress at the time, the majority of the population, and the Supreme Court all agreed that it’s important for labor have power, and to be able to act as a check against employers. This is common sense. Mr. Tavoliero is an idiot for thinking otherwise. If he and the Trumpists had their way, the economy would be headed for a massive crash… which is what happened in 1929, 2008 and 2020, by the way.
We need regulation, like it or not.
🫡🫡🫡
You are spot on in your analysis. I thought the same as well.
Ian, Your opinion on the benefits of unions and their influence on our economy sounds a lot like a good communist opinion. I would argue the other way, that inflation is directly related to the FED and how much their regulations affect businesses and their decisions. Do you believe that under our constitution that people should have the right to work? and that includes not having to bend to a union and pay their extortion fees in order to be gainfully employed.
The rich do not impact our economy in the way you describe, you would likely be singing a different tune if your bank accounts had more zeros behind it……Unions are a draw on the economy today because they have been politicized.
Perhaps the founders did not foresee such an expansion of the commerce clause. But they also didn’t foresee trucks and highways.
I have some deference for states rights and the notion that some actions (regardless of if we agree or disagree) should only be done at certain levels.
However, just as the invention of the internet forces us to reconsider search and seizure laws, so to did cars and trucks force us to reconsider interstate commerce. When traveling 20 miles took an entire day there truly were intrastate markets for labor and goods. When workers and shoppers routinely commute across state lines daily, the markets are fundamentally changed.
Having worked in small businesses, my experience is that nothing is more tyrannical than local governments with different rules for everything you do.
At one time, unions were a check to power. Presently, the Unions are a bought off piece of the Federal Government. Follow the money, is your Union really supporting you? There was a time and place, but now is not the time or place.
As Mr. Dooley observed decades before NLRB v Jones et al, “The Soopreme Court follows the illiction returns.” And in that decision, the Court was following that tradition. As for the rationale – that the Constitution is a living document – either it is a living document or it is a dead letter. That’s the political reality.
A close reading of sir John Harrington quote — ‘”treason doth never prosper”‘. Perhaps tyranny is something else that changes names after it prospers.
Lot of progressive perspectives here. I am left to presume the working people are too busy producing to opine. Therefore, One must assume the target rich collective is but a chimera of Alaskan Opinions. The right of the individual, The rights of the state, The rights of the country, In that order.
The rights of the individual are the primary focus of the constitution, followed by states’ rights. The federal government was only supposed to help interstate commerce and defense of the nation. Now, the bureaucratic tyranny in Washington seeks to enslave the individual though mandate and marginalize the states through bribery and blackmail.