“Government by Injunction,”
Legal Elites, and the Making of
the Modern Federal Courts
Kristin A. Collins ∗
Abstract
The tendency of legal discourse to obscure the processes by which social and political
forces shape the law’s development is well known, but the field of federal courts in
American constitutional law may provide a particularly clear example of this phenomenon. According to conventional accounts, Congress’s authority to regulate the lower
federal courts’ “jurisdiction”—generally understood to include their power to issue injunctions—has been a durable feature of American constitutional law since the founding.
By contrast, the story I tell in this essay is one of change. During the nineteenth century
and into the twentieth, many jurists considered the federal courts’ power to issue and enforce equitable decrees to be an essential, constitutionally endowed dimension of the
judicial function. Charting the demise of that theory over the first four decades of the
twentieth century, this essay highlights the roles of social movements and, especially, of
legal elites in forging and canonizing a new understanding of judicial power, and in normalizing debate over “who decides” as a routine dimension of ideologically divisive
socio-legal disagreements in American political life.
I. Introduction
The tendency of legal discourse to obscure the processes by which social and political
forces shape the law’s development is well known,1 but the field of federal courts may
provide a particularly clear example of this phenomenon. A rich, developing literature by
historians and public law scholars focuses on ways that political processes and social
∗
Professor of Law and Peter Paul Career Development Professor, Boston University. Earlier versions of this
paper were presented at Boston University School of Law, Emory School of Law, and at the Annual Meeting
of the American Society for Legal History, where I received extremely helpful feedback. In addition, several
readers provided particularly useful comments, including Mary Dudziak, Joanna Grisinger, Tara Grove,
Gerry Leonard, Serena Mayeri, James Pfander, Edward Purcell, Judith Resnik, Jed Shugerman, Norman
Spaulding, David Webber, and Larry Yackle. Brendan Blake, Brian Hayes, Kaitlin O’Brien, Dana Spiegelman,
and Andrea Vela provided excellent research assistance. Law librarians at Boston University were enormously
helpful in procuring difficult sources, and the archivists at the Library of Congress provided expert assistance.
1 Four decades ago, Morton Horwitz identified legal history’s capacity to challenge the law’s fundamental
premises: “Once legal history attempts to penetrate the distinction between law and politics . . . it begins to
undermine the indispensable ideological premise of the legal profession—indeed of any profession—that its
characteristic modes of reasoning . . . may not be universal or necessary, but rather particular and
contingent.” Morton J. Horwitz, The Conservative Tradition in the Writing of American Legal History, 17
Am. J. Legal Hist. 275, 281 (1973).
ISSN 2291-9732
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movements have shaped federal judicial power.2 But the professional discourse of federal
courts law, as well as most mainstream federal courts scholarship, demonstrates a durable
attachment to the notion that the constitutional contours of federal judicial power were
fixed at the founding and remain unchanged and unchangeable.3 How does legal regime
change occur in a juridical field that seems especially intent on cultivating an appearance
of continuity?
In considering this question, I take as my subject a modern doctrinal commonplace in the federal courts canon: by constitutional design, Congress has vast authority to
restrict the lower federal courts’ power to issue injunctions. The key constitutional provision is Article III, which states in part that the “judicial power . . . shall be vested . . . in
such inferior courts as the Congress may from time to time ordain and establish.”4 According to conventional interpretations of this language, it not only secures Congress’s
authority to create the lower federal courts, but also gives Congress the authority to
abolish those courts and to control other aspects of their operations, including their power to issue injunctions.5 The resilience of this interpretation of Article III is impressive.
See, e.g., Justin Crowe, Building the Judiciary: Laws, Courts, and the Politics of Institutional Development
(2012); Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court
and Shaped the Meaning of the Constitution (2009); Edward A. Purcell, Jr., Brandeis and the Progressive
Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America
(2000) [hereinafter Brandeis]; Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning
of Article III, 113 Harv. L. Rev. 924 (2000); Edward A. Purcell, Jr., Reconsidering the Frankfurterian
Paradigm: Reflections on Histories of Lower Federal Courts, 24 Law & Soc. Inquiry 679 (1999) (reviewing
Felix Frankfurter & James M. Landis, The Business of the Supreme Court: A Study in the Federal Judicial
System (1928)).
2
On the federal courts field’s particular tendency to make claims for law’s autonomy and timelessness, see
Malick W. Ghachem & Daniel Gordon, From Emergency Law to Legal Process: Herbert Wechsler and the
Second World War, 40 Suffolk U. L. Rev. 333, 369 (2007) (observing that the signal achievement of Henry
Hart and Herbert Wechsler’s The Federal Courts and the Federal System “was to constitute the study of
federalism as a meta-legal subject that is separate from the nation’s history and politics”) (discussing Henry
M. Hart, Jr. & Herbert Wechsler, The Federal Courts and the Federal System (1953)); Susan Bandes, Erie
and the History of the One True Federalism, 110 Yale L.J. 829, 830 (2001) (“In attempting to impart a
systematic coherence to the field [of federal jurisdiction], . . . the legal process approach advocated an
insularity that sought to exclude a whole host of influences and contingencies—political, cultural, historical,
and practical.”) (reviewing Purcell, Brandeis, supra note 2). The originalist tendencies of federal courts
jurisprudence and commentary are well known. See Amanda L. Tyler, Assessing the Role of History in the
Federal Courts Canon: A Word of Caution, 90 Notre Dame L. Rev. 1739 (2015); Richard H. Fallon, Jr.,
Jurisdiction-Stripping Reconsidered, 96 Va. L. Rev. 1043, 1054 (2010). Richard Fallon has provided a subtle
rejoinder to the charge that the field of federal courts, as represented by Hart and Wechsler’s The Federal
Courts, divorces questions of jurisdiction and jurisdictional policy from substantive outcomes. See Richard
H. Fallon, Jr., Comparing Federal Courts “Paradigms,” 12 Const. Comment. 3 (1995) [hereinafter
Comparing]. His reading of The Federal Courts is astute and refreshing. However, much of the modern
federal courts commentary and jurisprudence is not as attentive to operational context and history as he is.
3
4
U.S. Const. art III, § 1.
5 This interpretation is routinely leavened by reference to the “Madisonian Compromise,” the theory that
Article III reflects a compromise between federalists and anti-federalists. An issue dividing those two
groups was whether there should be any federal courts other than the Supreme Court, and hence the
“compromise” reflected in Article III was to allow, but not require, the creation of “inferior” federal courts.
The classic exposition of the Madisonian Compromise is Charles Warren, New Light on the History of the
Collins — “Government by Injunction”
337
Even through the heated and politically mobilizing debates over federal bussing injunctions
of the 1970s and 1980s, which generated rafts of anti-bussing bills in Congress, by and large
both sides agreed that Article III allowed for legislative reduction, even elimination, of the
lower federal courts’ power to issue injunctions.6
It may therefore surprise many students of federal courts law that this understanding of legislative supremacy over the equitable remedial power of the lower federal courts
was not always a commonplace in American jurisprudence and legal commentary. During
the nineteenth century and into the early twentieth, many jurists considered the federal
courts’ power to issue and enforce equitable decrees to be an essential dimension of the
judicial function that was in important respects unalterable by Congress. They anchored
their understanding of federal equity power in a different part of Article III, which mandates that the “judicial power” of the federal courts “shall extend to all cases, in . . .
equity.”7 This doctrinal formulation—and the more general view that the traditional powers of chancery were “inherent” in any court sitting in equity—sustained exercises of
federal judicial authority both pedestrian and contested. How did this understanding of
Article III become part of the detritus of American constitutional law?
On one level, my inquiry focuses on the traditional stuff of legal history. I seek to
explain a reorientation of the meaning assigned to specific constitutional language—an
interpretative regime change that continues to be reflected in American lawyers’ general
understanding of the allocation of power between the legislature and the judiciary. Thus, a
primary goal of this essay is to shed light on processes of structural constitutional change,
and in particular to demonstrate the significant role that social movements and allied elites
have played in cultivating the now-conventional meaning of Article III.8 To do so, I reFederal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 49-59 (1924). See infra text accompanying notes 102108. Michael Collins has described the Madisonian Compromise as an “unshakeable article of faith” for
modern federal courts scholars. Michael G. Collins, Article III Cases, State Court Duties, and the
Madisonian Compromise, 1995 Wis. L. Rev. 39, 44.
For characteristic accounts of congressional authority to restrict the equitable remedial authority of the
lower federal courts generated during those controversies, see Constitutional Restraints upon the Judiciary,
Hearings Before the Subcomm. on the Const. of the S. Judiciary Comm., 97th Cong. 34-35 (1981)
(statement of Paul M. Bator, Professor of Law, Harvard Law School); id. at 56-63 (statement of Telford
Taylor, Professor of Law, on behalf of the American Civil Liberties Union) [hereinafter Constitutional
Restraints]. History does not stop, of course, and the precise metes and bounds of Congress’s authority to
diminish the jurisdiction and remedial authority of the lower federal courts is the subject of ongoing debate.
Compare John Harrison, Jurisdiction, Congressional Power, and Constitutional Remedies, 86 Geo. L.J. 2513
(1998), with Judith Resnik, The Federal Courts and Congress: Additional Sources, Alternative Texts, and
Altered Aspirations, 86 Geo. L.J. 2589 (1988).
6
7
U.S. Const. art III, § 2.
The historical literature on the roles of social movements and elites in shaping constitutional rights is
impressive. But far less has been written regarding their efforts to shape the constitutional parameters of
judicial power, especially as exercised by the lower federal courts. Barry Friedman’s important work on the
role of public opinion in shaping judicial power—especially the power of the Supreme Court—is an
exception. See Friedman, supra note 2. Edward Purcell’s magnificent analysis of the political contests over
federal judicial power in the Progressive Era, including the debates leading up to the Norris-LaGuardia Act,
has also done much to remedy this deficiency. See Purcell, Brandeis, supra note 2, at 85-89. Nonetheless,
8
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construct one of the longest-running contests concerning court curbing in America’s history: Progressive Era debates over anti-labor injunction legislation. Between 1896 and
1932, these debates pitted the American labor movement, and especially the American
Federation of Labor (AFL), against well-organized “lawyers against labor.”9 These debates
occasioned a reorientation of the prevailing interpretation of Article III and of Congress’s
power to significantly restrict the lower federal courts’ equity powers.
My second and equally significant goal in writing this essay is to highlight the ways
in which contests over structural constitutional meaning serve as opaque forums within
which struggles over social, economic, and ideological differences take place.10 The fact
that the arcane details of federal procedure and jurisdiction were a focal point of a prolonged and bitter political struggle concerning workers’ rights will come as little surprise
to some readers given the prominent role of the federal courts in American political life.
But the central place of mandarin jurisdictional law in such contests has important implications for how they tend to unfold: who frames the legal issues, how the framing
privileges some groups over others, and who ultimately prevails. Significant in this regard
is the dispositive role that legal elites played in shaping the conventional understanding of
Article III and, more generally, in establishing the centrality of the question of “who decides” in the resolution of a disagreement that, at base, arose out of a cluster of disputes
over socio-economic rights and status. This was not a new phenomenon in the early
twentieth century, but with the publication of Henry Hart and Herbert Wechsler’s The
Federal Courts and the Federal System, along with the rise of the legal process school, those
questions took on new prominence.11 There is also a small dose of irony in this story of
legal regime-change: even as progressive intellectual elites sought to enhance the centrality
of democratically accountable decision makers, they helped to further elevate “lawyers’
law” to the primary mediating role between laypeople and official lawmaking institutions
that it continues to play today.
even sophisticated and rich accounts of the development of the lower federal courts, such as Justin Crowe’s
masterful Building the Judiciary, tend to assume that “Article III effectively delegates judicial institution
building to Congress.” Crowe, supra note 2, at 10. Here, by contrast, I consider the ways that this
interpretation of Article III has been shaped over time by political, economic, and social forces.
I borrow this phrase from Daniel R. Ernst, Lawyers Against Labor: From Individual Rights to Corporate
Liberalism 1-5 (1995).
9
Hendrik Hartog has observed that constitutional contestation over rights is a signal characteristic of
American legal culture, see The Constitution of Aspiration and “The Rights That Belong to Us All,” 74 J.
Am. Hist. 1013, 1032-33 (1987). Here, I consider how constitutional contestation over structure shapes
constitutional consciousness and sensibilities as well.
10
11
See infra notes 133-147 & accompanying text.
Collins — “Government by Injunction”
339
II. Constituting and Reconstituting Federal Equity Power
A. The Federal Labor Injunction and “The Judicial Power”
In 1895, Justice David Brewer authored the Supreme Court’s opinion in In re Debs,12
upholding the labor injunction issued in the famous and violent Pullman strike of 1894.
Calling the “jurisdiction of the court of chancery” the proper measure of federal courts’
power to enjoin “public nuisances,” Brewer insisted that “in no well-considered case has the
power of a court of equity to interfere by injunction in cases of public nuisance been denied,
the only denial ever being that of a necessity for the exercise of that jurisdiction under the
circumstances of the particular case.”13 As several historians have observed, Brewer’s account of equity in Debs was the product of an activist and politically conservative Court that
cultivated bodies of jurisprudence that largely served the interests of the industrial elite.14
But Debs was also a unanimous opinion that built on a substantial body of federal
precedent identifying Article III’s reference to “equity” as a distinctive dimension of judicial power. This view of federal equity informed a whole range of practices, from the
relatively mundane to the divisive. On the mundane side, from 1789 to 1938 the lower
federal courts maintained separate law and equity dockets—a practice so entrenched that
some commentators believed that Congress lacked the power to enact procedural reforms
that “merged” law and equity. This was not a fringe position. In the mid-nineteenth century, Congress rejected several proposals to alter the equity procedures of the federal
courts, with one House Judiciary Committee Report observing that “the court in the last
resort ha[s] repeatedly decided that the distinction between law and equity, to be exercised
by the federal judiciary, is a constitutional one: the question is therefore settled against the
proposed reform.”15 In 1909, President William Howard Taft—a tireless proponent of
federal procedural reform—assumed that complete merger was “impossible, without an
amendment to the Constitution.”16 And an early twentieth-century treatise on equity practice explained that “ ‘suits in equity’ as designated by the Constitution were suits in which
relief was sought in accordance with the principles and practice of equity jurisdiction as
established in the High Court of Chancery in England,” and that “Federal legislation
could not change it.”17
12
158 U.S. 564 (1895).
13
Id. at 592 (citation omitted).
14 See Purcell, Brandeis, supra note 2, at 40-46; William E. Forbath, Politics, State-Building, and the Courts,
1870-1920, in 2 The Cambridge History of Law in America: The Long Nineteenth Century 643, 656
(Michael Grossberg & Christopher Tomlins eds., 2011).
H. Comm. on the Judiciary, Practice of State Courts, H.R. Rep. No. 31-67 (1851). For a fuller discussion
of this point, see Kristin A. Collins, “A Considerable Surgical Operation”: Article III, Equity, and JudgeMade Law in the Federal Courts, 60 Duke L.J. 249 (2010).
15
45 Cong. Rec. 25, 31 (1909), cited in Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. Pa. L.
Rev. 1015, 1052 (1982).
16
17
W.S. Simkins, A Federal Equity Suit 4 (1911).
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Today, in the era of the equity-based Federal Rules of Civil Procedure and “one
form of action—the civil action,”18 the notion that Congress lacks the power to enact
procedural reforms that would combine the traditional modes of courts of law and courts
of equity seems bizarre. But in the late nineteenth and early twentieth centuries, the idea
that traditional equity powers were constitutionally distinctive coursed through the law
governing the federal courts’ powers and procedures. For example, the principles that the
Supreme Court devised for determining when a case fell on the equity side of a federal
court’s docket favored the cultivation of a distinctive body of federal equity principles. In
any given case, even if brought in diversity jurisdiction, if the legal remedy was inadequate
pursuant to federal (as opposed to state) equity standards, the case was brought on the
equity side of the federal docket and federal equity standards applied.19 During the nineteenth century and into the first decade of the twentieth, federal equity also provided the
jurisprudential basis for the development of direct judicial review of both federal agency
action20 and state rate-setting practices, culminating in American School of Magnetic Healing v.
McAnnulty21 and Ex Parte Young.22
The point is not to rehearse nineteenth-century shibboleths concerning federal
equity power as if they represented a true or uncontested understanding of judicial power
or Article III.23 Certain doctrinal expressions of federal equity power were the subject of
considerable resistance and debate, and fueled popular outcry concerning the federal
18
Fed. R. Civ. P. 2.
19 See Collins, supra note 15, at 265-91. For most of the nineteenth century, the lion’s share of federal cases
was brought in diversity, as there was no general federal question statute until 1875. See Act of Mar. 3, 1875,
ch. 137, § 1, 18 Stat. 470, 474.
See Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of
American Administrative Law 244-49 (2012).
20
21 187 U.S. 94 (1902). McAnnulty is routinely cited as creating a presumption of reviewability of
administrative actions in Article III courts. As Jerry Mashaw has noted, the cases cited by the Court in
McAnnulty to support this presumption of reviewability were proceedings in equity. Mashaw, supra note 20,
at 1411-12.
209 U.S. 123 (1908). Ex Parte Young is associated with the rise of the equitable cause of action in cases
against state officials, though the history of that case is contested. See David L. Shapiro, Ex Parte Young and
the Uses of History, 67 N.Y.U. Ann. Surv. Am. L. 69 (2011). Here, I seek only to place Ex Parte Young in a
broader jurisprudential context and to concur with Ann Woolhandler’s assessment that, prior to that
decision, federal courts had regularly used federal equitable remedies as a way of enforcing federal
constitutional principles in actions brought against state officials. See Ann Woolhandler, The Common Law
Origins of Constitutionally Compelled Remedies, 107 Yale L.J. 77, 101-03 (1997).
22
Modern federal courts scholars will instinctively list the many ways that Congress had restricted the federal
courts’ equity power by the end of the nineteenth century. See, e.g., Act of Mar. 2, 1793, ch. 22, § 5, 1 Stat.
333, 334-35. They may therefore dismiss as preposterous any suggestion of limits on congressional authority
to restrict federal equity power. But early twentieth-century lawyers for industry readily distinguished such
acts and cases using standard tools of legal argument, see infra note 55, and their arguments had significant
purchase in debates over anti-labor injunction legislation.
23
Collins — “Government by Injunction”
341
courts.24 Rather, it is to observe that, in part because of the distinctive doctrinal status of
federal equity, it served as an effective institution- and state-building tool for the federal
judiciary—one that, as William Forbath has so eloquently argued, often worked to consolidate federal judicial power in favor of corporate interests.25
Doctrinally supportable institutional practices are not easily unsettled, especially if
they tend to serve the interests of a well-heeled elite. As a result, the story of the transformation of federal equity power is a long one and—like most other instances of legal
regime change—involved all manner of determined activists, elites, and officials operating
in different forums.26 The Democratic Party decried “government by injunction” in its
1896 platform and endorsed legislative efforts to rein in federal judges.27 Lawyers and academics from different fields joined the chorus through the 1890s and into the early
1900s, offering various criticisms of the courts’ use of injunctions.28 Between 1896 and
1932, proposals to regulate or restrict the equity power of the federal courts were introduced in every session of Congress, for a total of well over two hundred bills.29 For over
three decades, these court-curbing proposals either failed or resulted in ineffectual legislation.30 But by the mid-twentieth century Congress had enacted several important
injunction-restricting statutes,31 and the notion that federal equity power was a facet of
“jurisdiction” that was subject to significant legislative diminution had emerged as the
dominant interpretation of Article III. Although the view that equity had a distinctive
constitutional basis had not been completely abandoned, its scope had been diminished
and reconfigured.
This was certainly true of Ex Parte Young, see Barry Friedman, The Story of Ex Parte Young: Once
Controversial, Now Canonical, in Federal Courts Stories 247 (Vicki C. Jackson & Judith Resnik eds., 2010),
and of the labor injunction.
24
25
Forbath, Politics, supra note 14, at 656-58.
On the progressives’ efforts to rein in the federal courts, see William G. Ross, A Muted Fury: Populists,
Progressives, and Labor Unions Confront the Courts, 1890-1937 (1994). For another important account of
Progressive Era challenges to federal judicial power, see Friedman, supra note 2, at 167-94.
26
27
Donald Bruce Johnson & Kirk H. Porter, National Party Platforms 1840-1972, at 99 (5th ed. 1973).
See, e.g., Charles Clafin Allen, Injunction and Organized Labor, 28 Am. L. Rev. 828 (1894); Louis Boudin,
Government by Judiciary, 26 Pol. Sci. Q. 238 (1911); William H. Dunbar, Government by Injunction, 3
Econ. Stud. 5 (1898); Cornelius H. Fauntleroy, Government by Injunction, 69 Cent. L.J. 129 (1909); Charles
Noble Gregory, Government by Injunction, 11 Harv. L. Rev. 487 (1898); William Draper Lewis, A Protest
Against Administering Criminal Law by Injunction: The Debs Case, 42 Am. L. Reg. & Rev. 879 (1894); F.J.
Stimson, The Modern Use of Injunctions, 10 Pol. Sci. Q. 189 (1895).
28
29 To collect and tally equity-limiting legislative proposals, I used the ProQuest Congressional Universe
database. The list generated was cross-checked against bills referenced in Felix Frankfurter and Nathan
Greene’s The Labor Injunction (1930) [hereinafter The Labor Injunction]. This tally does not include threejudge court bills, which were clearly intended to regulate the use of injunctions.
The anti-labor injunction provisions in the Clayton Anti-Trust Act are a good example of ineffectual
legislation. See infra discussion accompanying notes 72-85.
30
31 See Norris-LaGuardia Act, ch. 90, 47 Stat. 70 (1932); Act of May 14, 1934, ch. 283, 48 Stat. 775; Act of
Aug. 21, 1937, ch. 726, 50 Stat. 738; Act of Jan. 30, 1942, ch. 26, 56 Stat. 23.
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B. Labor Against the Lawyers
How did this transformation come about? Although the campaign to rein in federal equity power took place on several fronts, the most politically salient effort was the
multi-decade campaign by organized labor, and especially the AFL, to secure anti-labor
injunction legislation.32 Over the first decades of the twentieth century, the AFL would
become one of the most politically powerful labor organizations in the country, and its
role in the campaign to secure anti-labor injunction legislation is difficult to overstate.33
The union developed an institutional machinery dedicated to securing such legislation on
the state and federal levels.34 It authored many of the bills that responded to the overuse
of labor injunctions by federal courts, and it often vetted—and sometimes effectively vetoed—those it did not draft.35 The most important of the anti-labor injunction bills took
the form of regulation of the lower federal courts’ power to issue labor injunctions, ranging from modest procedural requirements—such as notice to workers whose conduct
exposed them to contempt charges—to complete bans on labor injunctions.36
Those legislative proposals challenged the view that equity was a constitutional
endowment of the lower federal courts, at some level irreducible by Congress. It was a
challenge that did not go unmet. As determined as the AFL was in designing and promoting anti-labor injunction legislation, it was matched—and, during the pre-1930 period,
largely overpowered—by a wall of well-organized, well-lawyered resistance. By the turn of
the century, American industry had organized through “employers’ associations” of vari32
See Ross, supra note 26, at 10-12, 28-31, 70-75.
See William E. Forbath, The Shaping of the American Labor Movement, 102 Harv. L. Rev. 1109, 1202-33
(1989); James Gray Pope, The Thirteenth Amendment Versus the Commerce Clause: Labor and the
Shaping of American Constitutional Law, 1921-1957, 102 Colum. L. Rev. 1, 12-46 (2002).
33
For example, at its 1902 annual convention, the AFL devised a plan for the enactment of anti-labor
injunction legislation, passing a formal resolution instructing its “Legislative Committee to prepare bills . . .
concerning . . . government by injunction” and “that copies of these bills . . . shall be sent to the executive
officers in each of the state federations of labor . . . with instructions” to submit the bills at county-level
conventions “of all political parties,” along with a formal request for endorsement of the proposed
legislation. Am. Fed’n of Labor, Report of Proceedings of the Twenty-Second Annual Convention of the
American Federation of Labor 227 (1902).
34
35 These proposals have not been ignored by the fine historians and public law scholars who have studied
the early twentieth-century labor movement. See Irving Bernstein, The Lean Years: A History of the
American Worker, 1920-1933, at 391-415 (1960); Ernst, supra note 9; William E. Forbath, Law and the
Shaping of the American Labor Movement (1991); Ruth O’Brien, Workers’ Paradox: The Republican
Origins of New Deal Labor Policy, 1886-1935 (1998); Christopher L. Tomlins, The State and the Unions:
Labor Regulations, Law, and the Organized Labor Movement in America, 1880-1960 (1985); Forbath, supra
note 33; Pope, supra note 33. But those scholars have largely focused on the development of labor law,
rather than the sustained and energetic debate over Article III that was triggered by labor’s proposals.
36 Between 1896 and 1909, at least sixty-one bills were proposed that would limit the power of federal courts to
hold an individual in contempt for violation of an injunction. See, e.g., H.R. 1035, 61st Cong. (1st Sess. 1909);
H.R. 3052, 57th Cong. (1st Sess. 1901); H.R. 1073, 56th Cong. (1st Sess. 1899). The first bill that would have
restricted the federal courts’ power to issue injunctions was introduced in the Senate in 1896, followed by
eleven more such bills over the next seven years. See, e.g., H.R. 4063, 58th Cong. (1st Sess. 1903); H.R. 11060,
57th Cong. (1st Sess. 1902); S. 35, 55th Cong. (1st Sess. 1897); S. 1750, 54th Cong. (1st Sess. 1896).
Collins — “Government by Injunction”
343
ous sorts, staffed by elite lawyers who represented their members’ interests by opposing
unions in courts and legislatures around the country.37 Responding to increasingly aggressive federal anti-labor injunction bills offered by labor in the first decade of the twentieth
century, industry lawyers turned to Article III as their first line of defense.
Arguments developed in a 1904 House Judiciary Committee hearing concerning
several anti-labor injunction proposals set the stage for a three-decade-long debate over
the scope and nature of federal equity power and Congress’s authority to restrict that
power.38 Although several industry representatives referenced the constitutional foundation of equity as a reason that the anti-labor injunction bills should fail, it was Levy Mayer
who formulated the most thorough and sustained description and defense of the constitutional basis of the “inferior” federal courts’ power to issue injunctions. Mayer, a Yale Law
School graduate, was a Chicago-based antitrust defense lawyer and a founding partner of
what is now the law firm Mayer Brown. In his appearance before the House Judiciary
Committee, Mayer represented the Illinois Manufacturers’ Association, which he had cofounded in 1893.39 But he seemed to speak for all industry-side organizations when he
identified and addressed a single question: “Is the attempt on the part of the bill to wrest
from a court of chancery the power to issue injunctions in the specific cases, a matter
within the constitutional power of Congress?”40 Assuming a professorial tone, Mayer
walked the committee members through the text of Article III, Section 1’s provision for
“judicial power” which “shall be vested . . . in such inferior courts as the Congress may
from time to time ordain and establish.”41 He then moved to Section 2’s mandate that
such power “shall extend to all cases, in . . . equity.”42 Reading these two provisions together, Mayer instructed the legislators that because the “Constitution has said that the
judicial power of the United States shall extend to all cases in law and equity,” it is therefore “the duty of Congress to create” those inferior courts, and it is beyond its authority
to ban or severely restrict those courts’ power to issue injunctions—a traditional function
of equity courts.43
Students of federal courts today will recognize Mayer’s statement as a version of
the “mandatory jurisdiction” theory of Article III, associated, both then and now, with
Justice Joseph Story’s 1816 opinion in Martin v. Hunter’s Lessee44 and with the idea that
37 Daniel Ernst has excavated this phenomenon in fantastic detail. See Ernst, supra note 9, at 1-5. See also
Forbath, supra note 33, at 1153-54.
38 See Anti-Injunction Bill: Complete Hearings Before the H. Comm. on the Judiciary on the Bill (H.R. 89),
58th Cong. (1904) [hereinafter Anti-Injunction Bill].
39
See Edgar Lee Masters, Levy Mayer and the New Industrial Era: A Biography 45 (1927).
40
Anti-Injunction Bill, supra note 38, at 393.
41
U.S. Const. art III, § 1.
42
Id. § 2.
43
Anti-Injunction Bill, supra note 38, at 395.
44
14 U.S. (1 Wheat.) 304, 328-37 (1816).
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Congress is constitutionally required to create at least some inferior federal courts.
Though today the mandatory jurisdiction theory is routinely presented as an unorthodox
or discredited understanding of Article III,45 it was alive and well in legislative debates
over anti-labor injunction legislation. Industry lawyers cited Martin’s mandatory jurisdiction theory and gave it particular vitality and relevance by knitting it together with the
sources supporting equity’s distinctive constitutional status.46 According to Mayer and
others, if any domain of federal judicial power was “mandatory,” it was equity. When “the
owner of property applies to the court for an injunction to . . . prevent the destruction, by
intimidation or mob violence, of the right to use and enjoy property,” is that not “a case
in equity?” Does not “a court of chancery [have] jurisdiction over such a cause[?]”47 That,
Mayer insisted, was the heart of the Court’s “unanimous” holding in In re Debs, which
“stood squarely upon the inherent jurisdiction of courts of equity to redress by injunction
grievances of that kind.”48 And that jurisdiction, he argued, “refers to the original chancery jurisdiction,” such that “the test of the equity jurisdiction of the Federal courts is the
remedy which existed before the judiciary act of 1789 was adopted.”49 Mayer was adamant: “What I contend, and what I challenge an answer to, is that Congress has no power
to take away from a Federal court the right to entertain jurisdiction of a case in ‘equity.’ ”50
It may have been true, as AFL president Samuel Gompers observed during the
same committee hearing, that constitutional arguments were “the last cry of the opposition.”51 But through decades of debates over anti-labor injunction legislation in the early
1900s, industry’s cry of constitutional or inherent equity power was coherent and insistent.
Its primary arguments had purchase for several reasons. First, industry’s representatives
interwove doctrinal assertions and systemic, normative contentions regarding the role of
the labor injunction as the last line of defense against the collapse of private property—
and, with it, the American republic—thus echoing a concern that labor’s opponents had
cultivated in multiple forums. Legislation that deprived the federal courts of the power to
issue labor injunctions “would be a long step in the direction of taking from the courts . . .
For the most important exceptions, see Akhil Reed Amar, The Two-Tiered Structure of the Judiciary Act
of 1789, 138 U. Pa. L. Rev. 1499 (1990); Akhil Reed Amar, A Neo-Federalist View of Article III: Separating
the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205 (1985); Robert N. Clinton, A Mandatory View of
Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U. Pa. L.
Rev. 741 (1984).
45
46 For representative arguments, see Limiting Scope of Injunctions in Labor Disputes: Hearings on S. 1482
Before a Subcomm. of the S. Comm. on the Judiciary, 70th Cong. 190 (1928) (statement of Alfred P. Thom,
Gen. Counsel, Ass’n of Ry. Execs.) [hereinafter Limiting Scope of Injunctions]; id. at 927 (same); The
Federal Courts and the Writ of Injunction in Labor Controversies: Brief for the S. Judiciary Comm., 59th
Cong. 16 (1906) (submission of James M. Beck and Daniel Davenport, Counsel, Am. Anti-Boycott Ass’n).
47
Anti-Injunction Bill, supra note 38, at 396.
48
Id.
49
Id. at 395.
50
Id. at 398.
51
Id. at 637.
Collins — “Government by Injunction”
345
the essential principles upon which the Republic itself is founded,”52 warned the general
counsel of the National Association of Manufacturers. Another industry representative reiterated the ominous suggestion, attributed to Senator Joseph Foraker, that the antiinjunction proposals were “not only revolutionary, but they are also anarchistic and must
be dealt with accordingly.”53 These arguments were in many respects reformulations of
the well-worn contention that protection of private property was the primary function of
the Constitution. But in industry lawyers’ hands, they were seamlessly incorporated into
an interpretation of Article III’s recognition of cases brought “in . . . equity.”
A second reason that industry’s constitutional arguments had authority was that
its spokesmen were able to generate an air of inevitability surrounding their doctrinal
claims. The elite lawyers who testified in Congress were well-trained in the intricacies of
constitutional law and methods of legal argument. They presented a theory of constitutional equity power, and correlative limits on legislative power, that was supportable using
existing interpretations of standard legal authorities: the text of the Constitution, judicial
opinions, and legal treatises. They spoke of federal equity power as a fixed and essential
dimension of “judicial power,” unchanged in relevant respects since the founding.54 They
readily distinguished contrary case law and statutes as factually or structurally inapposite.55
As a result, industry’s exposition of limits on legislative power seemed not to be ideological rantings, but rather the measured assessment of legal experts drawing on traditional
legal sources. As members of the professional culture of law, these spokesmen were able
to marshal sources and arguments in ways that were both legitimate and convincing in
forums “where law [was] spoken by knowledgeable lawyers.”56 Although the archetypal
lawyer’s forum is court, in this instance industry’s lawyers enlisted these sources and skills
in Congress.
The use of legalistic constitutional argument in congressional debates was a
shrewd step for industry for yet another reason. With the question of congressional power
52 See Anti-Injunction and Restraining Orders: Hearing Before the H. Comm. on the Judiciary, 59th Cong.
72 (1906) [hereinafter Anti-Injunction] (statement of James A. Emery).
53
Id. at 262 (statement of Daniel Davenport).
See, e.g., id. at 270-71 (statement of Daniel Davenport); id. at 101-02 (statement of George F. Monaghan,
Nat’l Founders’ Ass’n); id. at 52 (statement of T.J. Mahoney, Nat’l Ass’n of Mfrs.); id. at 114-16 (statement
of O.M. Brockett, Mfrs. Ass’n of the State of Iowa); Limiting Scope of Injunctions, supra note 46, at 439-41
(statement of James A. Emery).
54
55 For example, Robert C. Beatty of the United Typothetae of America distinguished statutes that required
“that the enforcement of the revenue laws shall not be committed to district courts,” insisting that such a
restriction occurs “before the judicial power is called in question.” However, “when [the judicial power] is
once called into question it is a power sacred under the Constitution, and you cannot strip it of its essential
attributes and call it power.” In Relation to Anti-Injunction and Restraining Orders: Hearing Before the H.
Comm. on the Judiciary, 59th Cong. 208 (1906) [hereinafter In Relation to Anti-Injunction Orders]; see also
Limiting Scope of Injunctions, supra note 46, at 194 (statement of Alfred P. Thom) (“To declare by statute
that no . . . injunction [restraining the collection of taxes] shall be issued, is merely a declaration of the law
existing independently of statute, and is not an interference with the equity powers of the court.”).
56
Bruce Ackerman, Interpreting the Women’s Movement, 94 Cal. L. Rev. 1421, 1425 (2006).
346
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front and center in debates over anti-labor injunction bills, labor was forced to answer
industry’s constitutional theory of federal equity power. But this required labor to engage
in a debate for which it was ill prepared. Although some members of the professional culture of law spoke for labor during the first two decades of debate over anti-labor
injunction legislation, during this period most of labor’s representatives in Congress came
from outside the club. Their disadvantage was obvious from the very beginning. When
confronted with Mayer’s argument in 1904, labor representatives could not immediately
answer “the constitutional question raised here . . . for the first time,”57 and asked to “be
permitted to file a brief from [an expert] on that subject.”58
Labor officials—almost all non-lawyers, and most without a college education—
thus embarked on a committed effort to craft a competing constitutional theory in support of Congress’s authority to regulate federal equity power. Andrew Furuseth—the
president of the Seamen’s Union and a tireless advocate for organized labor who worked
closely with the AFL59—threw himself into the study of the history of equity. He sought
to educate American workers on the fundamentals of federal equity power through essays
published in the AFL’s journal, The American Federationist, and The Seaman’s Journal.60 He
also served as one of labor’s primary spokesmen in Congress, where he presented a counter-narrative to industry’s portrayal of the labor injunction. Furuseth urged that the labor
injunction was in no way fundamental to the survival of the Republic, but instead was an
un-American tool of despotism—a progeny of the Roman Empire, the tyrannical monarchs of England, and the Star Chamber.61 He also developed a strict originalist
interpretation of the term “equity” as it appeared in Article III, drawing on his compendious knowledge of the history of Anglo-American equity practice. By the late eighteenth
century, he reasoned, English jurists had developed important limits on equity: equitable
remedies could “be exercised for the protection of property rights only,” and never to
“curtail personal rights” or “punish crime.”62 This was the understanding of “equity” the
57
Anti-Injunction Bill, supra note 38, at 590 (statement of Representative Henry W. Palmer).
58
Id. at 621 (statement of Andrew Furuseth).
59 Furuseth successfully lobbied for the Seamen’s Act of 1915, ch. 153, 38 Stat. 1164, which banned the use
of corporal punishment on merchant vessels, and the Jones Act of 1920, ch. 250, 41 Stat. 988, which
provided workmen’s compensation for sailors.
See, e.g., Andrew Furuseth, Autocracy—Old and New: Andrew Furuseth Discusses the Struggle Between
Law and Equity, Seamen’s J., Dec. 24, 1919, at 1; Andrew Furuseth, Equity Power and Its Abuse, 34-2 Am.
Federationist 1435 (1927); Andrew Furuseth, Extension and Misuse of Equity Power, 36-1 Am.
Federationist 83 (1929); Andrew Furuseth, No Property Rights in Man: The Essential Principle of Protest
Against Injunctions in Labor Disputes, 13 Am. Federationist 310 (1906); Andrew Furuseth, Use and Abuse
of Injunctions in Trade Disputes, 36 Annals Am. Acad. Pol. & Soc. Sci. 137 (1910).
60
See Hearings on H.R. 7759 Before the H. Comm. on the Judiciary, 70th Cong. 10b-14b (Mar. 6, 1928)
[hereinafter Hearings on H.R. 7759]; Anti-Injunction, supra note 52, at 19, 22-25. Labor representative John
P. Frey made similar arguments. See Hearings on H.R. 7759, supra, at 21b. Furuseth’s contention that labor
injunctions were fundamentally unrepublican was a legalistic version of an argument that was commonly
made in speeches by labor activists in diverse forums. See Tomlins, supra note 35, at 62-63.
62 In Relation to Anti-Injunction Orders, supra note 55, at 23; see also Injunctions: Hearings Before the H.
Comm. on the Judiciary, 62d Cong. 109 (1912).
61
Collins — “Government by Injunction”
347
framers of Article III had intended, Furuseth urged, and because the federal labor injunction extended well beyond that understanding, it was “a usurpation of a sovereignty not
granted to [the federal] courts.”63
Furuseth’s originalist argument was certainly legally cognizable, but it had at least
two significant shortcomings. First, his attempt to debate industry’s representatives on the
textualist-originalist terms they had used to frame the issue of the constitutionality of antilabor injunction legislation led him to basically agree with industry that the metes and
bounds of the federal courts’ equity powers were established by the Constitution—and
that Congress was extremely limited in how it could regulate those powers. “Within the
lines of specific jurisdiction of equity,” Furuseth explained, any statutory provisions that
significantly departed from original equity practice “would destroy the fundamental purpose for which equity was imported, and for which it exists and would no doubt be
repugnant to the Constitution. The question, therefore, is how to restore equity jurisdiction to what it was when the Constitution was adopted.”64 Regardless of how much
evidence Furuseth amassed in support of this line of argument, it held little appeal for
progressive legislators, who generally sought more latitude in regulating the federal judiciary. As the progressive Republican senator George Norris worried to Professor Felix
Frankfurter in 1931, “Mr. Furuseth’s attitude on the labor question stands as an obstacle
in the way of any accomplishment. Those who oppose us, in my judgment, are going to
utilize to the very limit the objections of Mr. Furuseth” to resist proposed legislative restrictions on labor injunctions.65
Second, the anti-labor injunction bills that Furuseth helped draft—the Pearre Bill,
introduced in 1906, and the Shipstead Bill, introduced in 192766—were nevertheless dramatic in their curtailment of federal equity power. Both of these bills would have limited
the federal injunction to the protection of “property” and excluded the employeeemployer relationship from the definition of that term.67 This was the intended goal, of
course, but such a deep cut into judicial power may have seemed to justify industry’s
complaint that labor sought to upend the judiciary’s role in the constitutional order—a
63
In Relation to Anti-Injunction Orders, supra note 55, at 25.
Defining and Limiting the Jurisdiction of Courts Sitting in Equity: Hearing Before a Subcomm. of the S.
Comm. on the Judiciary on S. 2497, 71st Cong. 14 (1930) [hereinafter Defining and Limiting, S. 2497]; see
also id. at 13 (“In America, the Federal courts have equity powers under the Constitution, where an
adequate remedy at law does not exist.”).
64
65 Letter from George W. Norris, Senator, Nebraska, to Felix Frankfurter, Professor, Harvard Law School
(Mar. 27, 1931) (Papers of Senator George Norris, Library of Congress).
The Pearre Bill was drafted by AFL legislative counsel Thomas S. Spelling and Furuseth, and was
originally introduced in 1906 in the House by George A. Pearre, a Republican from Maryland. See H.R.
18171, 59th Cong. (1st Sess. 1906). The Shipstead Bill was drafted primarily by Furuseth and was
introduced in 1927 by Minnesota senator Henrik Shipstead. See S. 1482, 70th Cong. (1st Sess. 1927).
66
67
See H.R. 18171, 59th Cong. (1st Sess. 1906); S. 1482, 70th Cong. (1st Sess. 1927).
348
Critical Analysis of Law 3:2 (2016)
step that many progressive legislators were unwilling to take, at least in the first two decades of the twentieth century.68 Unsurprisingly, both the Pearre Bill and the Shipstead Bill
generated an outcry of unconstitutionality on the grounds that the federal courts’ equity
powers were constitutionally ordained by Article III.69
One might be tempted to minimize the importance of these debates over Article
III’s meaning in what was essentially a political and ideological power struggle over industrial policy and workers’ rights. But that assessment ignores the fact that participants on
all sides of these debates believed that Article III’s text and doctrine created the legal conditions under which anti-labor injunction legislation could be crafted.70
A brief account of the history of the largely ineffectual anti-labor injunction provisions included in the Clayton Anti-Trust Act of 1914 illustrates how constitutional
discourse helped shape legislative and judicial responses to the labor injunction problem.71
Even after the political environment for labor improved in 1912,72 the AFL was unable to
garner sufficient support for the Pearre Bill’s near-complete ban on federal labor injunctions. Instead, Congress enacted a far more modest set of procedural restrictions on labor
injunctions as part of the Clayton Act.
68
On progressives’ hesitance to enact significant court-curbing legislation, see Ross, supra note 26, at 14-21.
For arguments that the Pearre Bill abrogated the inherent equity power of the federal courts, see AntiInjunction, supra note 52, at 102-03 (statement of George F. Monaghan); id. at 114-19 (statement of O.M.
Brockett). For arguments that sounded in originalism, see id. at 52, 64 (statement of T.J. Mahoney); AntiInjunction, supra note 52, at 114 (statement of O.M. Brockett); Limiting Scope of Injunctions, supra note
46, at 440-41 (statement of James A. Emery). For arguments regarding the Shipstead Bill’s abrogation of
inherent or constitutionally established equity power, see Limiting Scope of Injunctions, supra note 46, at
178-90 (statement of Alfred P. Thom); id. at 432 (statement of James A. Emery).
69
For a searching and astute examination of the role that constitutional text plays in constitutional
contestation, see Reva Siegel, Text in Contest: Gender and the Constitution from a Social Movement
Perspective, 150 U. Pa. L. Rev. 297 (2001).
70
Historians and public law scholars have long debated why the anti-labor injunction provisions of the
Clayton Act were so ineffectual. Some suggest that the Court was largely responsible. See, e.g., Bernstein,
supra note 35, at 208-15; Frankfurter & Greene, The Labor Injunction, supra note 29, at 176; Pope, supra
note 33, at 22-23, 30. Others maintain that national legislators knowingly enacted an ambiguous statute. See
George I. Lovell, Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy 15460 (2003); Forbath, supra note 33, at 1121-22; Daniel R. Ernst, The Labor Exemption, 1908-1914, 74 Iowa
L. Rev. 1151, 1167 (1989). My account suggests that any full explanation for the Clayton Act’s inefficacy
must account for the central role played by constitutional discourse, as filtered through the political
processes. For an insightful account of the Clayton Act that considers the dynamic interaction between the
Court and Congress in the interpretation of that Act, see William N. Eskridge, Jr., Dynamic Statutory
Interpretation 98-100 (1994).
71
72 The 1912 elections brought President Woodrow Wilson into the White House and more Democrats and
progressives into Congress. See Michael J. Dubin, United States Congressional Elections, 1788-1997: The
Official Results of the Elections of the 1st Through 105th Congresses 384-95 (1998). Both the Democratic
platform and presidential candidate Wilson expressed support for some kind of anti-labor injunction
legislation. See Dallas Jones, The Enigma of the Clayton Act, 10 Indus. & Lab. Rel. Rev. 201, 203 (1957).
Candidate Wilson appears to have been more supportive of organized labor and anti-labor injunction
legislation than President Wilson, however. See id. at 203-05.
Collins — “Government by Injunction”
349
Those measures were initially proposed in the form of a 1912 judiciary bill, introduced by the chair of the House Judiciary Committee, Henry D. Clayton, setting out
various procedural restrictions on labor injunctions. These restrictions were presented as
compromise measures that accommodated industry’s constitutional objections to labor’s
anti-injunction proposals. Clayton’s report on the judiciary bill directly addressed those
objections, explaining that the bill “really [did] not change the best practice with respect to
[injunction] orders,”73 and assuring his colleagues that there was “no question of constitutionality involved” because “[t]his bill does not . . . invade the jurisdiction of the courts or
attempt legislatively to exercise a judicial function.”74 Nevertheless, labor’s opponents
maintained that even the modest restrictions on equity power that Clayton proposed unconstitutionally abrogated judicial power. Representative Reuben Moon—a Republican
and a stalwart defender of constitutional equity power—gave not an inch. “The power to
grant injunctions is inherent in courts of equitable jurisdiction. . . . and is derived from the
Constitution of the United States, which by section 2 of Article III provides: The judicial
power of the United States shall extend to all cases in law or in equity arising under the
Constitution.”75 “Gentlemen,” he opined, “I am going to stop to tell you that that is absolutely unconstitutional. You can not do it.”76
After the anti-injunction provisions were incorporated into the Clayton Act—
albeit in diluted form77—industry representatives continued to insist that the Act’s antiinjunction provisions must be narrowly construed, lest they “invade the judicial power of
the federal courts of equity, which the constitution declares shall extend to all cases and
controversies over which, by the statutes of their creation, they are given jurisdiction.”78
These objections had purchase in the Supreme Court. When the inevitable constitutional
challenges to the Clayton Act’s anti-injunction provisions made their way to the Court, a
majority of the justices were sympathetic to industry’s take on the limits of Congress’s
power to significantly restrict the lower federal courts’ equity powers. Although the Court
did not find any of the Clayton Act’s anti-injunction provisions to be unconstitutional per
se, in a textbook exercise of constitutional avoidance, it read them for as little as they were
worth for labor. Most notably, in the infamous case Duplex Printing Press v. Deering (1921),
the majority opinion by Justice Mahlon Pitney significantly neutered Section 20 of the
Act, which barred injunctions in labor disputes “unless necessary to prevent irreparable
injury to property, or to a property right,” and required a description of the property at
73
See Regulation of Injunctions, H.R. Rep. No. 62-612, at 5 (1912) (report on H.R. 23635).
74
Id. at 15.
Injunctions: Proceedings in the H. of Representatives in Connection with the Injunction Bill to Prevent
Abuses of the Process of Injunction: H.R. 23635, 62d Cong. 69 (1912).
75
76
Id. at 78.
77 As Daniel Ernst has demonstrated in searching detail, Daniel Davenport worked diligently to weaken the
anti-injunction provisions of the Clayton Act while it was pending in Congress. See Ernst, supra note 71.
78
Daniel Davenport, An Analysis of the Labor Sections of the Clayton Anti-Trust Bill, 80 Cent. L.J. 46, 52 (1915).
350
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issue “with particularity.”79 Generating a “paroxysm of outrage” among labor activist and
progressives,80 the Duplex Court held that Section 20 did not reach “secondary boycotts”—unionized workers’ refusal to work with materials made by non-unionized
workers81—in part on the grounds that Section 20 “imposes an exceptional and extraordinary restriction upon the equity powers of the courts of the United States.”82 This was
precisely the argument made in a brief by the indefatigable “lawyer against labor” Daniel
Davenport of the Anti-Boycott Association.83 In a series of cases following Duplex, the
Supreme Court and the lower federal courts narrowed the reach of the anti-injunction
provisions of the Clayton Act even further,84 leading Professor Felix Frankfurter and his
co-author Nathan Greene to credibly opine in 1930 that the statute “came as clay in to the
hands of the federal courts.”85
Much more could be said concerning the interaction of Congress, the courts, and
activists on the subject of federal equity power over the course of legislative and judicial
debates concerning the Clayton Act. For present purposes, it is sufficient to observe that
the understanding that equity was a constitutional endowment of Article III courts proved
an effective doctrinal resource for industry representatives and pro-industry legislators. It
not only helped them defeat the anti-labor injunction bills favored by the AFL, it also
helped them shape the anti-injunction provisions eventually included in the Clayton
Act—even as their support among the electorate was diminishing. Finally, the theory that
equity power was to some degree beyond regulation by Congress informed the Court’s
interpretation of the Clayton Act, helping to render the Act largely ineffectual, and also
signaling to legislators and policy makers that any future anti-labor injunction legislation
would need to tread lightly on the lower federal courts’ equity power.
C. Progressive Elites and the Reconfiguration of Federal Equity Power
In 1932, eleven years after Duplex, Congress enacted a new anti-labor injunction
statute, the Norris-LaGuardia Act, which finally seemed to tie the hands of federal judges
in labor disputes. And six years after that, the Supreme Court upheld the Act, reasoning in
Lauf v. Shinner that “[t]here can be no question of the power of Congress thus to define
79
Clayton Act, ch. 323, § 20, 38 Stat. 730, 738 (1914).
80
Ross, supra note 26, at 181.
81
Duplex Printing Press v. Deering, 254 U.S. 443, 468 (1921).
82
Id. at 471.
83 See Brief for Appellant at 65-66, Duplex, 254 U.S. 443 (1921) (No. 164). See also Davenport, supra note
78, at 51-52.
See, e.g., Am. Steel Foundries v. Tri-City Trades Council, 257 U.S. 184 (1921); Bedford Cut Stone Co. v.
Journeyman Stone Cutters’ Ass’n of N. Am., 274 U.S. 37 (1927); Buyer v. Guillan, 271 F. 65 (2d Cir. 1921);
Quinlivan v. Dail-Overland Co., 274 F. 56 (6th Cir. 1921); Kinloch Telephone Co. v. Local Union No. 2,
275 F. 241 (8th Cir. 1921).
84
85
Frankfurter & Greene, The Labor Injunction, supra note 29, at 176.
Collins — “Government by Injunction”
351
and limit the jurisdiction of the inferior courts of the United States.”86 What happened?
The Great Depression happened, of course, changing the economic and political landscape of the United States in ways that had likely been unimaginable in the early 1920s. In
1937, the “constitutional revolution” happened, recalibrating the Supreme Court’s role in
American law. These events are obviously central to any full explanation of the NorrisLaGuardia Act and Lauf. But they also risk eclipsing important and distinctive intellectual
developments that occurred prior to these events—developments that undergirded these
two landmarks, that shaped and were shaped by early twentieth-century political and economic upheavals, and that were cultivated by a group of politically well-connected
progressive legal elites.
In the late 1920s, the AFL was as determined as ever to break the federal courts’
grip on labor unions.87 But questions concerning exactly what Congress could do continued to haunt labor’s efforts. In 1927, Senator Henrik Shipstead introduced a bill, primarily
authored by Andrew Furuseth, that would have banned federal courts from issuing any
injunctions save those designed to protect “tangible and transferable” property.88 The
Shipstead Bill triggered yet another round of debates over the original meaning of the
term “equity.” As this stalemate continued, the Senate Judiciary Committee’s Subcommittee on Labor Injunctions sought guidance elsewhere.89 In 1928, led by Senator George
Norris of Nebraska, the Subcommittee tapped Felix Frankfurter, Donald Richberg, Edwin Witte, Francis Sayre, and Herman Oliphant to draft a new anti-labor injunction bill.90
All of these men had significant experience with labor law and industrial disputes.91 In the
years leading up to the enactment of the Norris-LaGuardia Act in 1932, this group—and
especially Frankfurter—helped break the grip of the constitutionally-based theory of federal equity power on the legislative process.
86
Lauf v. Shinner, 303 U.S. 323, 330 (1938).
87
Bernstein, supra note 35, at 391-415.
88
S. 1482, 70th Cong. (1st Sess. 1927).
89
The Subcommittee included senators George Norris, Thomas Walsh, and John Blaine.
90
See S. Rep. No. 71-1060, pt. 2, at 5 (1930).
Richberg was a Harvard-educated labor lawyer and co-author of the Railway Labor Act of 1926. See Ruth
O’Brien, “Business Unionism” Versus “Responsible Unionism”: Common Law Confusion, the American
State, and the Formation of Pre-New Deal Labor Policy, 18 Law & Soc. Inquiry 255, 288 n.130 (1993)
[hereinafter “Business Unionism”]. Witte was an economist who had served as secretary to a member of the
House Judiciary Committee during debates over the Clayton Act. See Theron F. Schlabach, Edwin E. Witte:
Cautious Reformer 27, 52-65 (1969). Frankfurter and Sayre were both professors at Harvard Law School;
Oliphant at Columbia Law School and then Johns Hopkins University. Both Sayre and Witte had been
enlisted by the AFL to help draft anti-labor injunction legislation earlier in the 1920s. See O’Brien, supra
note 35, at 151. On Frankfurter’s involvement in labor matters, see Michael E. Parrish, Felix Frankfurter
and His Times 107-14 (1982). On Oliphant, see O’Brien, “Business Unionism,” supra, at 288 n.130.
91
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While other progressive law professors had been developing and refining narrower conceptions of judicial review,92 Frankfurter had cultivated his signature approach to
the problem of judicial power: procedural and jurisdictional reform. In 1924, Frankfurter
co-authored an article that defended Congress’s authority to regulate the contempt powers of Article III courts.93 In the process, he developed a full account of the history of
congressional regulation of the lower federal courts’ jurisdiction and procedures. Frankfurter taught a seminar at Harvard Law School titled Federal Jurisdiction, and his students
regularly produced papers on the limits of federal equity power.94 He was not the only
progressive legal scholar focused on the federal courts’ jurisdiction and procedures, but
his analyses were the most systematic and comprehensive.
Frankfurter and his colleagues also proved to be careful and skilled draftsmen. On
May 10, 1928, Frankfurter sent Norris their “Tentative Draft,” which was wholly unlike the
Pearre Bill or the Shipstead Bill. Saying nothing about property—tangible or intangible,
transferable or not—their bill was styled as a limitation on the federal courts’ “jurisdiction
to issue any restraining order or injunction in a case involving or growing out of a labor dispute.”95 Perhaps most important, their bill did not attempt to eliminate injunctive remedies
entirely, even in labor cases. Instead, it would impose a total bar only on federal injunctions
that targeted individual workers engaged in certain enumerated lawful acts, such as “refusing
to perform any work.”96 With respect to all other labor injunctions, it imposed a host of
procedural requirements, including “hearing the testimony of witnesses in open court” and
making findings that “unlawful acts have been committed,” that injury to the complainant
would be “substantial,” and that “public officers charged with the duty to protect complainants’ property [were] unable or unwilling to furnish adequate protection.”97
These proposed restrictions on the federal labor injunction were modest compared with the Pearre Bill and the Shipstead Bill, but the drafters were careful for a
reason. Although they claimed that the entire bill “proceed[ed] upon the theory that Congress can limit the jurisdiction in equity of the inferior federal courts,”98 they were fully
The influence of James Bradley Thayer on this generation of legal scholars is well known. See Wallace
Mendelson, The Influence of James B. Thayer upon the Work of Holmes, Brandeis, and Frankfurter, 31
Vand. L. Rev. 71 (1978).
92
Felix Frankfurter & James M. Landis, Power of Congress over Procedure in Criminal Contempts in
“Inferior” Federal Courts: A Study in Separation of Powers, 37 Harv. L. Rev. 1010 (1924).
93
See, e.g., Daniel James, Federal Equity Jurisdiction to Enjoin Acts of State Officers, 18 Iowa L. Rev. 1
(1932); Telford Taylor & Everett I. Willis, The Power of Federal Courts to Enjoin Proceedings in State
Courts, 42 Yale L.J. 1169 (1933); Joseph A. Bruggeman, Constitutional Limitations on Federal Equity
Jurisdiction (1931) (unpublished thesis, Harvard Law School); Paul A. Freund, The Effect of State Statutes
on Federal Equity Jurisdiction (1931) (unpublished thesis, Harvard Law School).
94
95
Tentative Draft, 1 (Felix Frankfurter Papers, Harvard Law School).
96
Id. at 3.
97
Id. at 4.
98 Letter from Edwin E. Witte to Donald R. Richberg (Mar. 13, 1930) (Felix Frankfurter Papers, Harvard
Law School).
Collins — “Government by Injunction”
353
aware that constitutional objections to the legislative diminution of federal equity power
had helped defeat labor’s efforts to secure effective anti-labor injunction legislation for
decades. Among his Norris-LaGuardia Act papers, Frankfurter saved a New York Times
article reporting that the “Shipstead bill was killed in committee because it modified the
principles of equity in a way that might be considered unconstitutional.”99 Perhaps with
this in mind, in correspondence with his co-drafter Edwin Witte, Frankfurter explained
that they “should confine this bill to the procedural features governing injunctions” and
to “correction[] of the procedural evils.”100
Given the standing objection that significant cuts into federal equity power were
unconstitutional, it is also quite understandable that Frankfurter sought to provide the
committee with an account of Article III that would support the bill he helped draft.
When Frankfurter sent the “Tentative Draft” to Senator Norris in 1928, he included a
copy of his 1924 Harvard Law Review article on contempt with a note: “Some time ago I
had occasion to examine all the legislation of Congress from 1789 through 1924 dealing
with the Federal Courts with a view to establishing the extensive power possessed by
Congress to limit the jurisdiction of the Federal Courts to regulate their procedure and to
define the substantive law to be enforced by them.”101
For the next four years, as the draft bill was subjected to scathing criticism by industry and some members of the labor movement, Frankfurter continued a steady output
of scholarship developing and supporting his position on congressional authority to significantly curtail the equity power of the lower federal courts. For example, in a 1929
Harvard Law Review article, Frankfurter and Nathan Greene made excellent use of Pulitzer
Prize-winning historian Charles Warren’s important 1924 article New Light on the Federal
Judiciary Act of 1789 to directly counter industry’s “mandatory jurisdiction” theory of Article III and federal equity power.102 In New Light, Warren had produced a powerful
synthetic account of debates at the Constitutional Convention and in Congress concerning Article III and the Judiciary Act of 1789, famously describing both as “compromise”
measures and using that history to support a capacious understanding of congressional
authority vis-à-vis the lower federal courts.103 Today the “Madisonian Compromise” provides the standard historical lens through which lawyers interpret Article III.104 But when
New Light was first published, labor lawyers seized on Warren’s historical analysis as a
99 Offers Bill to Cut Labor Injunctions: A.F. of L. Council Strengthens Measure Drawn by Senators Walsh,
Norris and Blaine, N.Y. Times, Aug. 16, 1929 (Felix Frankfurter Papers, Harvard Law School).
100 Letter from Felix Frankfurter, Professor, Harvard Law School, to Edwin E. Witte (May 29, 1928) (Felix
Frankfurter Papers, Harvard Law School).
Letter from Felix Frankfurter, Professor, Harvard Law School, to George W. Norris, Senator, Nebraska
(May 10, 1928) (Felix Frankfurter Papers, Harvard Law School).
101
See Felix Frankfurter & Nathan Greene, Labor Injunctions and Federal Legislation, 42 Harv. L. Rev.
766, 776 (1929) (citing Warren, supra note 5).
102
103
Warren, supra note 5, at 49-59, 67.
104
See Collins, supra note 5, at 44.
354
Critical Analysis of Law 3:2 (2016)
fresh resource to use in their effort to establish Congress’s power to enact anti-labor injunction legislation.105 Similarly, in their 1929 article, Frankfurter and Greene incorporated
Warren’s findings into their interpretation of Article III. “Every inferior federal court
is . . . created by act of Congress and derives the jurisdiction that it exercises through
grant of Congress,” they explained. Citing New Light, they held that interpretation to be
“the view of the most influential of the framers of the Constitution and, beyond peradventure, of the draftsmen of the First Judiciary Act of 1789 which created the federal
hierarchy of courts. . . . Accordingly, [Congress may modify] the injunctive powers in labor
disputes now exercised by the federal courts . . . by defining and limiting the exercise of
federal jurisdiction in such controversies.”106 As for “arguments to the contrary,” Frankfurter and Greene asserted that they “have their source in Story’s doctrinaire federalism.”107
In 1930, Frankfurter and Greene duplicated this analysis in The Labor Injunction,
their book-length defense of the pending anti-labor injunction bill that Frankfurter had
helped to draft.108 Their publisher, Macmillan, sent complimentary copies to a long list of
legislators, policymakers, union leaders, and judges that Frankfurter had provided.109 The
authors also continued to address the issue in law reviews. “Is the power to issue injunctions an
inherent part of the judicial power of which the Federal courts cannot be deprived? ” Frankfurter and
Greene asked in a 1931 Columbia Law Review article.110 “Surely not,” was their reply. Norris
and his colleagues on the subcommittee finally had a well-supported answer to the question that had long frustrated progressive legislators in their efforts to enact anti-labor
injunction legislation.
Constitutional theories do not die easily, however. Partisans on both sides of the
labor injunction issue were unconvinced by Frankfurter’s interpretation of Article III. Industry’s representatives continued to insist that any legislation that significantly restricted
the authority of the federal courts to issue labor injunctions would be “the end of judicial
power of the United States . . . and [that] the equity structure which has been established
For example, Warren’s article was published while Donald Richberg and AFL lawyer Jackson Ralston
were writing the merits brief in Michaelson v. United States, 266 U.S. 42 (1924), in which an employer
challenged the Clayton Act’s jury requirement for contempt hearings on the grounds that Congress lacked
the power to alter federal equity procedure. Warren’s article was so helpful to Richberg and Ralston that
they titled one of the subheadings in their brief “New Light on the Federal Judiciary.” Brief for Petitioners
at 24, Michaelson v. United States, 266 U.S. 42 (1924) (No. 70, 8246).
105
106
Frankfurter & Greene, supra note 102, at 775-77.
107
Id. at 777.
108
See Frankfurter & Greene, The Labor Injunction, supra note 29, at 208-09.
109 See Letter from Margaret Conklin, Macmillan Co., to Felix Frankfurter, Professor, Harvard Law School
(July 12, 1929) (Felix Frankfurter Papers, Library of Congress).
110 Felix Frankfurter & Nathan Greene, Congressional Power over the Labor Injunction, 31 Colum. L. Rev.
385, 407 (1931) (emphasis in original).
Collins — “Government by Injunction”
355
by our forefathers during long centuries would be utterly destroyed in one class of cases.”111
Furuseth, who generally resented the professors’ intervention,112 remained largely committed to his own originalist understanding of federal equity and the far more restrictive antiinjunction bill he had helped to draft. In 1930, he wrote to Frankfurter asking the professor to explain “[w]hat was understood by equity when the Constitution was adopted.”113
Frankfurter cordially dismissed Furuseth’s invitation to engage in a debate over the framers’
intent, responding that “the road to reform is not in this attempted return to the past.”114
This was not quite true. Although Frankfurter was willing to make such candid
statements in personal correspondence, he and his progressive colleagues knew that the
constitutional sensibilities of legislators in the early 1930s were originalist in their orientation.115
Indeed, just days before a 1932 House Judiciary Committee hearing, Representative Fiorello LaGuardia wrote to Frankfurter explaining that the chairman of the committee was
“terribly disturbed” by one issue: “what control the legislative branch of the government
could exercise over the equity powers of the court as these powers were possessed by the
judiciary at the time of the adoption of the Constitution.”116 At that hearing, Frankfurter’s
co-drafter Donald Richberg addressed this issue directly by drawing the committee’s attention to Charles Warren’s New Light article and his “extensive investigation into the
circumstances surrounding the passage of the first judicial act,” which was drafted by
“practically the same men who framed the Constitution of the United States.”117
Richberg informed the committee’s members that “it is not a fairly debatable question
at this time as to whether the limitation upon the jurisdiction and the limitation upon
the procedure of the Federal courts which are laid down in this bill are within the power
of Congress.”118
Frankfurter did not appear in person, but he provided a concise memorandum—
the nutshell guide to his interpretation of Article III and Congress’s vast power to regulate
the federal courts’ remedial powers. Like the elite lawyers who had represented industry’s
interests for so many decades, Frankfurter carefully marshaled sources and precedent, and
distinguished unhelpful case law as factually or structurally inapposite. Most important
Defining and Limiting the Jurisdiction of Courts Sitting in Equity: Hearing on H.R. 5315 Before the
Committee on the Judiciary, 72d Cong. 24 (1932) (statement of James A. Emery) [hereinafter Defining and
Limiting, H.R. 5315].
111
112
See Pope, supra note 33, at 30-31.
113 Letter from Andrew Furuseth to Felix Frankfurter, Professor, Harvard Law School (Mar. 28, 1930) (Felix
Frankfurter Papers, Library of Congress).
Letter from Felix Frankfurter, Professor, Harvard Law School, to Andrew Furuseth (April 11, 1930)
(Felix Frankfurter Papers, Library of Congress).
114
115
See Johnathan O’Neill, Originalism in American Law and Politics: A Constitutional History 25-36 (2005).
Fiorello H. LaGuardia, Representative, New York, to Felix Frankfurter, Professor, Harvard Law School
(Feb. 18, 1932) (Felix Frankfurter Papers, Library of Congress).
116
117
Defining and Limiting, H.R. 5315, supra note 111, at 9.
118
Id. at 9-10.
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Critical Analysis of Law 3:2 (2016)
among the latter was Justice Story’s opinion in Martin v. Hunter’s Lessee, which had featured
in industry’s opposition to anti-labor injunction legislation for decades. Frankfurter assured the legislators that Story’s insistence that “it is a duty of Congress to vest the judicial
power of the United States, it is a duty of Congress to vest the whole judicial power,” was
“simply a statement of his personal views” and a byproduct of “his militant federalism.”119
Story’s opinion in Martin, Frankfurter announced, “is maverick in the judicial fold.”120
Contrary to that opinion, he concluded, “[t]he power of Congress over the equity powers
of the lower Federal courts is implied in congressional power over these courts generally.”121 Within weeks of the House Judiciary Committee hearing—and six months before
the election of Franklin Roosevelt as President—the bill drafted by Frankfurter and his
colleagues, altered only modestly from the original version, was readily approved by the
Senate and the House with broad veto-proof support in both chambers.122
Victory in Congress did not mean the end of challenges to the progressives’ reading of Article III, however, and it was by no means clear that the Norris-LaGuardia Act
would survive judicial scrutiny. On the same day that President Herbert Hoover signed
the Norris-LaGuardia Act, he released an opinion letter from his attorney general, William
D. Mitchell, who opined that some of the provisions in the bill “are of such a controversial nature that they are not susceptible of final decision by the executive branch of the
government . . . . These questions . . . can only be set at rest by judicial decision.”123 In
hindsight, we know that by the time the Act was tested in the Court, Mitchell’s concerns
about its constitutionality—whether genuinely felt or political posturing—were illfounded. In 1938, in Lauf v. Shinner, the Court rejected the argument that the Act’s restriction of the power of federal courts to issue labor injunctions was unconstitutional.
That argument had been made by the attorney for E.G. Shinner & Co., the corporation
that owned and operated five Milwaukee meat markets and that had sought an injunction
against the allegedly overbearing efforts of an AFL affiliate to unionize its workers. In his
brief, attorney William Gold urged that if the Act were construed to prohibit the injunction sought by his client, “it would be unconstitutional.” Making the same argument
industry lawyers had used in Congress, Gold explained that, according to Article III,
“[a]lthough Congress establishes the inferior courts and distributes the jurisdiction among
them, the judicial power is derived from the Constitution,” including the power to issue
Define and Limit the Jurisdiction of Courts Sitting in Equity, H.R. Rep. 699, 72d Cong. 14 (1932)
(quoting Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 330 (1816)) [hereinafter Define and Limit].
119
120
Id.
121
Id. at 16.
122
See O’Brien, supra note 35, at 168-69 (Senate: 75 to 5; House: 363 to 13).
George D. Mitchell, White House Statement About Signing a Bill to Limit the Use of Injunctions in
Labor Disputes, Mar. 23, 1932, in Public Papers of the Presidents of the United States, Herbert Hoover,
1932-1933, at 112, 113 (1977).
123
Collins — “Government by Injunction”
357
injunctions. To support this understanding of the “judicial power,” Gold filled a page and
a half of his brief with quotes from Martin v. Hunter’s Lessee.124
All of these arguments were perfectly legible in 1938, but by then they were legible
as a vision of federal judicial power that was quickly falling out of favor. In an opinion by
Justice Owen Roberts, the Court dismissed Gold’s arguments with a brief statement:
“There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United States.”125 Roberts had, of course, played a pivotal
role several months earlier in the Court’s newfound willingness to approve government
regulation of the economy, and in Lauf he was joined by several of the Court’s more liberal Justices.126 But what is most telling about the demise of the constitutionally-based
theory of federal equity power is that even the two horsemen who dissented in Lauf—
Justices Pierce Butler and James McReynolds—said nothing about the constitutional equity powers of the federal courts, Martin, or even Article III. In Lauf, the justices silently
abandoned an understanding of Article III that had helped sustain the labor injunction for
decades.
III. Canonizing Structural Constitutional Change
The interpretation of the historical sources that I have offered thus far stands in stark
contrast to the account of Article III that prevails in federal courts law and commentary
today. Modern accounts of Lauf tend to characterize it as an expression of the inevitable
and unchanging meaning of Article III, and an obvious and necessary resolution of the
constitutional question raised by the Norris-LaGuardia Act.127 But reading Lauf against the
early twentieth-century debates over anti-labor injunction legislation suggests, to the contrary,
that the opinion is properly understood as part of a longer process of legal regime change.
Neither an expression of a pre-existing settled understanding of Article III nor a proclamation of revolutionary constitutional change, the Court’s opinion in Lauf was a quiet and
in some respects opaque affirmation of a constitutional theory cultivated over decades by
individuals operating in diverse settings, and sometimes with disparate ambitions.
It would be an overstatement, however, to conclude that a single sentence in Lauf
finally resolved questions concerning the scope of the legislature’s power to regulate federal equity.128 True, Lauf moved the Court’s jurisprudence in the direction of Frankfurter’s
assessment that “the power of Congress over the equity powers of the lower Federal
Brief of Respondent at 20-21, Lauf. v. Shinner, 303 U.S. 323 (1938) (No. 293) (citing Martin v. Hunter’s
Lessee, 14 U.S. (1 Wheat.) 304 (1816)).
124
125
Lauf v. Shinner, 303 U.S. 323, 330 (1938).
126 Justices Stone, Brandeis, Black, and Hughes joined Roberts’s majority opinion. Justices Cardozo and the
newly appointed Justice Reed did not participate in the Lauf case.
127 See, e.g., Constitutional Restraints, supra note 6, at 34-35 (statement of Paul M. Bator, Professor, Harvard
Law School).
128 For a discussion of Lauf that is consistent with this observation, see Gordon Young, Critical
Reassessment of Case Law, 54 Md. L. Rev. 132, 170-80 (1995).
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Critical Analysis of Law 3:2 (2016)
courts is implied in congressional power over these courts generally,”129 as did several of
the Court’s affirming responses to other contemporaneous legislative efforts to rein in
federal equity power.130 But the Court was not always consistent, and in some opinions it
seemed less eager to embrace the view that Congress’s power in this regard was plenary.
For example, in Hecht v. Bowles the Court rejected a (not unfounded) interpretation of the
Emergency Price Control Act to require the lower federal courts to enforce the Administrator’s order using an injunction if he demonstrated that the target of that order had
engaged in, or was about to engage in, prohibited practices. Refusing to allow such a dramatic restriction of the federal courts’ equitable discretion, the Court explained that “[we]
are dealing here with the requirements of equity practice with a background of several
hundred years of history.”131 To accept the government’s interpretation of the statute
would mark “a drastic departure from the traditions of equity practice.”132 By the mid1940s, the Court had certainly distanced itself from the vision of federal equity power—
and correlative limits on legislative authority—that had stymied labor’s efforts to secure
effective labor injunction legislation. But it had not completely abandoned the notion that
equity was a constitutional endowment of the lower federal courts.
If the Court’s jurisprudence left some ambiguity regarding the constitutional contours of federal equity power, other authorities helped canonize equity’s diminished
constitutional status. Most significant in this regard, in 1953, two decades after Congress
enacted the Norris-LaGuardia Act, and a decade and a half after the Court decided Lauf,
Henry Hart and Herbert Wechsler published their field-defining casebook The Federal
Courts and the Federal System.133 The editors’ intellectual debt to Frankfurter is no secret,134
but their filial piety is especially evident in their treatment of the Norris-LaGuardia Act
and Lauf. The Act and the opinion are neatly folded into a section devoted to “congressional restriction of jurisdiction,”135 which packages, in casebook style, the question of
Congress’s control over federal equity power as one that is answerable with doctrinal
129
See Define and Limit, supra note 119, at 16.
130 See, e.g., Yakus v. United States, 321 U.S. 414, 441-42 (1944); Lockerty v. Phillips, 319 U.S. 182, 188
(1943). In Yakus and Lockerty the Court upheld the Emergency Price Control Act’s limitation of judicial
review of assessments made under the Act, and assignment of those cases to a specially created Article III
court. See also Miss. Power & Light Co. v. City of Jackson, 9 F. Supp. 564, 567-68 (S.D. Miss. 1935).
131
321 U.S. 321, 329 (1944).
Id. at 329. Notably, even Justice Frankfurter concurred, agreeing that the statute in question “does not
change the historic conditions for the exercise by courts of equity of their power to issue injunctions.” Id. at
331. In Great Lakes Dredge & Dock Co. v. Huffman, the Court characterized Congress’s restriction of federal
courts’ power to enjoin the collection of state taxes in 1937 as a legislative recognition and “sanction” of the
traditional parameters of federal equity power as defined by the courts, not as a restriction of that power.
See 319 U.S. 293, 297-99 (1943).
132
133
Hart & Wechsler, supra note 3, at 312-13.
134 The first edition of the casebook is dedicated to Frankfurter. See also Mary Brigid McManamon, Felix
Frankfurter: The Architect of “Our Federalism,” 27 Ga. L. Rev. 697 (1993).
135
Hart & Wechsler, supra note 3, at 288.
Collins — “Government by Injunction”
359
sources concerning the subject matter jurisdiction of the lower federal courts. That section
opens with Sheldon v. Sill 136 and Ex Parte McCardle 137—two strong iterations of Congress’s
authority to control the jurisdiction of the federal courts. A lengthy excerpt from Martin v.
Hunter’s Lessee138 is next, which is introduced with an affirmative reference to Charles Warren’s New Light article and is followed immediately by the editors’ question: “Is Justice
Story’s position consistent with the deliberate compromises of the Constitutional Convention?”139 Hart and Wechsler do not label Story’s opinion “maverick,” as Frankfurter
had, but their presentation of Martin has an “even Homer nods” quality about it.
The casebook’s discussion of the Norris-LaGuardia Act and Lauf appears after
this skeptical treatment of Story’s theory140 and directs readers to Frankfurter and
Greene’s The Labor Injunction and to Frankfurter’s 1932 memo to the House Judiciary
Committee—the memo in which he had assured the legislators that “equity jurisdiction”
was subject to near complete congressional control.141 Notably, this discussion of Lauf
and the Norris-LaGuardia Act contains no reference to In re Debs or to the once prevalent
theory that federal equity power was a constitutionally endowed feature of judicial power.
While the absence of such references is largely invisible to students of federal courts law
today—most of whom grew up on a diet of Hart and Wechsler—to Levy Mayer, Daniel
Davenport, and Justice Mahlon Pitney these would have been significant omissions. But
by the time The Federal Courts was published, these men had been dead for decades.
My observations should not be taken to suggest that this rightly celebrated tome
provided a simplified account of the sources that were relevant to assessing the legality of
injunction-limiting measures. As any student who has been exposed to Hart and
Wechsler’s casebook will attest, it is the wrong place to look for easy answers to difficult
questions. The editors perfected the Socratic method in print form, most explicitly in the
case of “jurisdiction stripping,” where they reprinted over twenty-eight pages of Hart’s
famous dialogue on congressional control of federal court jurisdiction.142 Nor do I suggest
that the institutional settlement reflected in their arrangement of cases and materials concerning Congress’s authority to restrict the equity power of the lower federal courts
distorted the law as it stood circa 1953. Rather, my point is to observe the extent to which
even a sophisticated and nuanced casebook like The Federal Courts necessarily systematized
136
49 U.S. (8 How.) 441, 449 (1850).
137
74 U.S. (7 Wall.) 506 (1868).
138
14 U.S. (1 Wheat.) 304 (1816).
139
Hart & Wechsler, supra note 3, at 293.
140 See id. at 295. A very brief discussion of Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511 (1898),
appears between the discussions of Martin and the Norris-LaGuardia Act.
141 See Hart & Wechsler, supra note 3, at 295 (citing Frankfurter & Greene, The Labor Injunction, supra
note 29, and H.R. Rep. 669, 72d Cong. (1932)).
Id. at 312-40, reprinting Henry M. Hart, Jr., A Further Note on the Power of Congress to Limit the
Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362 (1953).
142
360
Critical Analysis of Law 3:2 (2016)
and organized knowledge, in the process canonizing not just cases but issues, narratives,
assumptions, and arguments.143 Although Hart and Wechsler did not provide pat answers,
they marked out the parameters of permissive arguments and framed questions regarding
congressional power to restrict the remedial authority of the federal courts through their
selection of doctrinal resources and historical narratives. As one of the current editors of
the casebook has observed, The Federal Courts “reflects an insider’s largely internalized
standards of what is sayable and unsayable” concerning federal courts law.144 By 1953, it
was virtually unsayable that Article III restricted Congress’s authority to narrowly limit the
lower federal courts’ power to issue injunctions.
Why has the shift in the prevailing interpretation of Article III described in this
essay been so thoroughly obscured in modern law and commentary? One possibility is
that this is simply a symptom of the law’s discursive tendency to obscure signs of its own
transformation—a tendency that may be particularly pronounced in the federal courts
field. Susan Bandes contends that the field “wards off” history’s “challenge to its hermeticism.”145 And Edward Purcell, whose historical excavations have done more than
anyone’s to challenge the “hermeticism” of the law of procedure and jurisdiction, has observed that federal courts scholars have “only recently . . . begun to consider the extent to
which their subject is the confected product of distinctive historical developments.”146
One common explanation for this tendency is the field’s close association with the legal
process school and its effort to secure law’s legitimacy by crafting stable procedural and
jurisdictional rules that focus attention on “who decides.”147
Careful examination of the anti-labor injunction debates suggests an additional,
complementary explanation for the elision of the interpretative shift described in this essay: the doctrines and narratives that support the modern orthodox view of federal equity
power and Article III were shaped and redefined during the course of a prolonged political contest over judicial power during which advocates on all sides were pressed to
develop legal theories that obscured evidence of change. A concrete example: even
On the history of instructional casebooks, see Lindsay Farmer, Of Treatises and Textbooks: The
Literature of the Criminal Law in Nineteenth-Century Britain, in Law Books in Action: Essays on the
Anglo-American Legal Treatise 145, 161-63 (Angela Fernandez & Markus D. Dubber eds., 2011); David
Sugerman, Legal Theory, The Common Law Mind and the Making of the Textbook Tradition, in Legal
Theory and Common Law 26, 26-54 (William Twining ed., 1986). On the history of the federal courts
course, with particular attention to Frankfurter’s influence on themes of federalism that animate Hart and
Wechsler’s casebook, see McManamon, supra note 134. On the role of instructional casebooks in canon
formation more generally, see J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111
Harv. L. Rev. 963, 1005-08 (1998).
143
144
Fallon, Comparing, supra note 3, at 10.
145
Bandes, supra note 3, at 831.
146
See Purcell, Brandeis, supra note 2, at 5.
On the relationship of the federal courts field and the legal process school, see Neil Duxbury, Faith in
Reason: The Process Tradition in American Jurisprudence, 15 Cardozo L. Rev. 601, 635-36 (1993); Richard
H. Fallon, Jr., Reflections on the Hart and Wechsler Paradigm, 47 Vand. L. Rev. 959, 956-61 (1994).
147
Collins — “Government by Injunction”
361
though Frankfurter’s originalist commitments were lukewarm at best148—and even as
originalism was waning as a dominant mode of constitutional interpretation149—in crafting a theory to support anti-labor injunction legislation, he was pressed to articulate
arguments within an institutional setting in which originalist argumentation was still highly
valued. Together with his co-drafters, Frankfurter needed to show that the constitutionally-based theory of federal equity power offered by industry was not just wrong but had
never been right. Hart and Wechsler largely memorialized Frankfurter’s account of equity
and Article III, and conveyed it to a new generation of elite lawyers.
Accounts of constitutional structure that emphasize the law’s unchanging nature
may have the beneficial effect of enhancing its stability and predictability, but they also
obscure the processes of legal regime change and the ways that different groups mediate
such change. In this case, the notion that Congress’s authority over the equity power of
the federal courts has always been plenary elides the prominent role of early twentiethcentury elite lawyers in contests over the meaning of Article III. Although the AFL’s
campaign to “reward congressional friends and punish congressional enemies”150 was undoubtedly key to the success of the Norris-LaGuardia Act, providing a convincing theory
of Article III that would support such legislation largely fell to an emergent group of legal
elites. What they achieved in the Norris-LaGuardia Act was not exactly what labor sought
in terms of constitutional rights or structure, but it was more than labor had been able to
achieve without their intervention.
This observation is not intended to glamorize the role of legal elites in the process
of structural constitutional change.151 Rather, it is to acknowledge that role and to observe
a certain irony: in their quest to minimize the position of the federal courts in American
political life—and thus, quite commendably, to create more space for lawmaking by politically accountable branches—progressive elites also helped cultivate and elevate a body of
“lawyers’ law” that continues to mediate the ways that laypeople navigate lawmaking institutions.152 The story of the demise of a constitutionally-based theory of federal equity
power is thus not only about the process of structural constitutional change but also
about the normalization and modernization of debate over “who decides” as a routine
dimension of ideologically divisive socio-legal disagreements. Whether such debate serves
or hinders the work of progressive social movements today is an open question, but the
fact that jurisdiction and procedure are commonplace subjects of contestation in modern
American political life is not.
148
See Letter from Frankfurter to Furuseth, supra note 114.
149
See O’Neill, supra note 115, at 25-36.
150
Forbath, supra note 33, at 1231.
James Gray Pope has argued that Frankfurter and his colleagues tried to “scuttle the constitutional
rights” of labor—their claim to a right to strike based on the Thirteenth Amendment—and did so to satisfy
their “professional self-interest and elite sensibilities.” Pope, supra note 33, at 43.
151
152 See Stephen Burbank & Sean Farhang, Litigation Reform: An Institutional Approach, 162 U. Pa. L. Rev.
1544 (2014).