“If the Workers Took a Notion”: The Right to Strike and American Political Development, by Josiah B. Lambert, Ithaca, N.Y.: ILR Press, 2005, ix, 259 pp., ISBN-10: 0-8014-8945-8 and ISBN-13: 978-0-8014-8945-7

This book by political scientist Josiah Bartlett Lambert revisits the history of the right to strike in the United States to answer two questions: How did the American labour movement in the private sector sink to a ten percent unionization rate? How did “one of the most militant labor movements” become so “cowed” with a strike rate that is only a “mere one-tenth of what it was a generation ago?” (p. 4). A decade after the election of a new AFL-CIO leadership committed to reversing the decline in union membership through aggressive organizing, the downward drift continues. The share of American workers belonging to unions has been falling for more than 50 years—an almost inexorable decline barely affected by the new energies that John Sweeney’s team brought to the AFL-CIO in 1995. Hiring new organizers, alliances with other social movement organizations, new political initiatives—none of these strategies of revitalization has visibly affected American labour’s decline, and the share of private sector workers belonging to unions has now fallen to pre-New-Deal levels. Beginning with an important but familiar fact of U.S. industrial relations—the declining propensity to strike—Lambert explores the declining legal protection offered striking workers as an indicator of a larger phenomenon: the growing bias against collective action in America’s liberal polity. In a nutshell, he argues that “the rise of the modern American liberal state transformed the right to strike from what had been a stalwart citizenship right, founded on civic republican principles, into a tentative and conditional commercial right based on modern liberal precepts” (p. 5). Lambert’s study draws on a wide range of secondary works about the history of American industrial relations and labour law from the early nineteenth century onwards. By bringing forward historiographical and social-scientific concepts that have been developed by others in the study of 19^th century American labour relations, Lambert’s historical survey attempts to show that “rights-based liberalism cannot provide an adequate justification for the right to strike because it offers no satisfactory theory of collective rights” (p. 187). Lambert’s three-pronged argument is a complex one, which should be read and pondered carefully. The author finds the principal cause of the falling rate of striking in the erosion of the right to strike, exemplified by the use of permanent replacement workers. He then attributes this to labour law’s historic decision to treat the right to strike as a commercial matter, rather than as a question of fundamental constitutional rights. Finally, he proposes to draw on the tradition of 19^th century “civic republicanism” to reground the right to strike in the Constitution’s 13^th Amendment—the “Free Labor Amendment” that bans “involuntary servitude.” The conventional story of the right to strike in the United States—tracing to the work of John R. Commons and his associates—holds that from colonial times through much of the 19^th century, strikes were banned as common law conspiracies. Judges gradually renounced the conspiracy doctrine and established the right to strike—a great advance in labour and human rights. According to this conventional account, labour has by and large accepted the remaining limitations on that right. Lambert’s revisionist account of the history of the right to strike tells a rather different story. Lambert reminds us that through the 1870s or the 1880s, there were actually remarkably few practical limitations on the right to strike in the United States—the hostility of legal doctrine notwithstanding. While some strikes were suppressed under the conspiracy doctrine, a far greater number were conducted without judicial interference. Lambert shows how nineteenth-century strikers were protected in law and respected in their communities because their strikes—and their collective action …