The workplace has been a central battleground in the debate over freedom. On the clock, bosses tell us how to act and what to do, even around basic bodily functions: workers can be told when they can use the bathroom. Bosses also exert a significant amount of control over our personal lives, dictating limits on speech and our political actions. Governments can imprison us for breaking their rules; bosses can fire us, depriving us of the basic resources we need to live. Unlike our democratic form of public government, the workplace subjects us to, in the words of philosopher Elizabeth Anderson, a kind of private government, with no presumption of fairness, accountability, or even regularity—a despotic state in miniature. Leaving our job is no check on this despotic tendency. People know this, which is why for centuries American workers have demanded more than the power to quit. As much as fair wages and safe working conditions, workers have also demanded safeguards over their time.
There have always been workers who demanded limits on working hours to accommodate everything else that they needed time for. They understood that if they didn’t have free time, they couldn’t have the kinds of relationships and commitments they needed to lead free and full lives. This is a story almost as old as the United States itself. In May 1835 a group of carpenters, masons, and stonecutters in Boston wrote and released the “Ten-Hour Circular,” a short document demanding a ten-hour workday. “The God of the Universe has given us time, health, and strength. We utterly deny the right of any man to dictate to us how much of it we shall sell.” The circular’s description of the system as “odious, cruel, unjust, and tyrannical” and of bosses forcing a worker “to exhaust his physical and mental powers by excessive toil, until he has no desire but to eat and sleep, and in many cases he has no power to do either” resonated with workers, especially those new to waged labor. Citizens left in a worn-out state of exhaustion could not be “friends to the country or the Rights of Man,” nor could they meet their “duties to perform as American Citizens and members of society.” The authors also understood that excessive hours disrespected workers as the creators of value in the economy. “We are willing to bear our portion of the burthens, and perform our part of the services of social life, if we can be treated as men and not as beasts of burthen.”
When the printed circular made its way to Philadelphia in June 1835, it likely inspired the nation’s first general strike. It began with handloom weavers demanding a ten-hour day, but quickly spread across all of Philadelphia’s industries, with bricklayers, plasterers, masons, cigar makers, city employees, bakers, saddlers, and printers joining in. House painters declared the “present system of labor as oppressive and unjust” and “destructive of social happiness, and degrading to the name of freemen.” Within a week and a half, more than twenty trades were on strike. The city’s first ten-hour law passed as a result, setting the standard for public employees. Many private employers backed away from longer hours.
This wave of strikes proved that time was a currency in the new American economy; it would remain that way over the next century. Demands for time unified workers across many industries and skill levels. They wanted time for rest, their families, and their communities. That cigar makers and bricklayers could both see a better world through the guarantee of more time helped bind them both in a collective enterprise. Instead of asking for wages industry by industry, firm by firm, they could use time to measure fair working conditions across the entire economy. Because employers wanted to capture more and more of it, time became both a universal measure and a battlefield for the idea of freedom.
Today our own time is terribly managed by the economy. Many work absurd hours, without knowing their schedules in advance, holding down multiple jobs just to survive. Others are excluded from the labor force entirely. We are locked within an ideology where market activity is viewed as the fundamental freedom. Yet in our era of no alternatives, it is essential to remember that there was a time when workers posed an alternative and demanded freedom from the market domination of their time. Their efforts even found some success. It is something we can return to in our time.
During the Civil War, as military mobilization caused a shortage of workers in the North, labor found new power. Between 1863 and 1864, trade unions more than tripled in number, from 79 to 270, with a record 200,000 organized workers. Labor newspapers proliferated, with Fincher’s Trades’ Review, the newspaper of the machinists and blacksmiths, emerging as the loudest advocate for shorter working hours. Some in the labor movement saw shorter working hours as an important extension of fighting slavery. Ira Steward, who had worked twelve-hour days as an apprentice machinist before the Civil War, believed that it was necessary to liberate American workers not just from chattel slavery but “wage slavery” as well. He argued that an eight-hour workday was “anti-pauperism, anti-aristocracy, anti-monopoly, [and] anti-slavery.” He was deeply involved in the Machinists’ and Blacksmiths’ International Union and was a leader of the Grand Eight-Hour League of Massachusetts, a role he shared with the abolitionist Wendell Phillips. Steward argued for a living wage, a term he likely created, and fewer working hours. He also pushed the labor movement in new directions with his belief that high wages and shorter working hours were good for the economy as a whole, not just workers. High wages would create more demand for goods, which in turn would create more production. Shorter hours meant spreading work among more people, helping temper the unemployment that comes with a changing economy. Shorter hours also meant that productivity could increase, since employers would look for ways to invest to make workers create more, and this would in turn increase wages. This would lead to a virtuous cycle that would benefit all and protect against major depressions. His view put workers and consumers, instead of bosses and owners, at the center of value creation in the economy.
Steward also saw consumerism as a way to achieve an industrialized democracy. Mass enjoyment of the prosperity that an industrial economy creates was necessary to keep the engine running; for Steward, “consumerism” meant the ability of workers to buy the things they need through their own fair share of what they were creating. He saw it as a method for harnessing and deploying working-class power as well as stabilizing the economy. He attacked those who used the concepts of thrift and self-denial to discipline the working-class. The “charge of extravagance” against working people “is made to sustain the claim that wages ought not to be any higher.” Consumerism wasn’t just about individuals satisfying their own desires and preferences, but a way for workers to claim a share of the economy that they produced for themselves. This consumerism allowed workers to build a culture and gain control over their time and neighborhoods, to keep their traditions and communities, and ease the experience of the often brutal working conditions they faced. Shorter working hours contribute to freedom by creating the time and cultural space necessary for civil society to thrive.
Demand continued to grow for an economy that gave workers more while also clearing time for themselves, their families, and their communities. In 1884 the Federation of Organized Trades and Labor Unions issued a resolution that “eight hours shall constitute a legal day’s work from and after May 1, 1886.” The call motivated far more people than the Federation had ever imagined, with a wave of labor energy hitting the streets that year. Workers marched with the slogan, “Eight hours for work, eight hours for rest, eight hours for what we will!” Strikes broke out across the nation. Workers wanted their share of the economic expansion through better pay, shorter hours, and more say within their workplaces. They were encouraged by local organizers from the Knights of Labor, who channeled the energy around a shorter working day into action. Even before May of that year, a quarter of a million workers joined the call for shorter hours. By the second week of May, that number had grown to 340,000 workers, more than half on strike. An estimated 200,000 workers won shorter working hours as a result of their demands.
Yet, during this time, workers’ campaigns faced every kind of opposition. Presidents would call out the military to break strikes on behalf of owners. Bosses would deploy squads to break up and even fire upon workers. But one group was able to go far beyond this, both in the power they wielded and their willingness to deploy state violence to back a conflicting theory of freedom: the courts and the judges who sat on them. The courts wielded the most power to oppose labor actions and their legislative victories. The Supreme Court had already overturned many pieces of economic legislation. It had recently stopped an income tax, weakened antitrust enforcement, and upheld labor injunctions that made it easier to stop strikes. And in an infamous 1905 case, it would overturn a New York State maximum hours law with an argument that relied on a competing theory of freedom, that of the freedom to contract.
The rapid growth of urban populations at the end of the nineteenth century had put pressure on bread supply chains and made bakeries dangerous and demanding workplaces, most often located in the basements of tenements. They lacked sunlight and airflow, creating prime conditions for the spread of disease. But the biggest grievance that workers had were the hours. One 1895 estimate had bakers working 74-hour weeks; some places had much longer hours, with reports of even 114-hour weeks. As one worker in New York described it, “the bakers had been robbed of daylight, robbed of everything that makes life sweet and desirable, and left to work almost incessantly, day and night.”
In 1895 New York passed the New York Bakeshop Act, regulating working conditions and limiting work hours to ten a day or sixty a week. Labor contracts then were governed by a harsh, even feudal, set of court-enforced default rules. Employees couldn’t receive back pay if they didn’t complete their contracts, other employers couldn’t try to hire away already employed workers, employees assumed all the risks of injury, and employers had full control over employees’ actions. While these default assumptions could be changed, employers tended to hold the power in these negotiations. But unlike many previous labor laws that were binding only if no other agreement was in place, the Bakeshop Act added an enforcement mechanism, with criminal penalties for noncompliance and a team of state factory inspectors.
In April 1901 Joseph Lochner, a small bakery owner in Utica, New York, hired Aman Schmitter with a schedule of more than sixty hours a week. After being charged with a misdemeanor under the Bakeshop Act, Lochner was found guilty; his punishment was a $50 fine or fifty days in jail. The case made its way on appeal to the Supreme Court of the United States. Many thought that the Court would find the labor law well within the boundary of state’s police powers, or the ability of states to regulate the health and safety of their citizens. But the Court’s Lochner v. New York overturned the law’s maximum hours restrictions on the basis that people have a freedom to contract. Justice Rufus Peckham, writing for the 5–4 majority, said that the Bakeshop Act “necessarily interferes with the right of contract between the employer and employees, concerning the number of hours which the latter may labor in the bakery of the employer.” Peckham continued: “There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the state.”
It is the saddest irony that the Supreme Court used the Reconstruction amendments to attack labor legislation, which they were never designed to do, at the same time that they also abandoned using them to preserve civil rights for Black people in the South. Peckham justified the decision with the Fourteenth Amendment, which had never been designed to contest labor legislation. Indeed, after the Civil War, the amendment was meant to bolster equal rights for newly freed people, to prevent individual states from depriving “any person of life, liberty, or property, without due process of law.” Along with the Fifteenth Amendment, designed to protect voting rights, the Fourteenth Amendment promised that “[t]he Congress shall have power to enforce this article” using “appropriate legislation.” The Supreme Court would come to apply these Reconstruction amendments against labor at the same time that it would disavow their challenge to white supremacy: two years before Lochner, the Court had ruled in Giles v. Harris that new restrictions designed to prevent Black people from voting did not violate the Fifteenth Amendment.
The Lochner decision was so poorly decided that it’s worth teasing out the multiple ways that it was wrong, which can be clearly identified in the two dissenting opinions. In the first, Justice John Marshall Harlan defended the Bakeshop Act under the police powers, which allowed states to regulate public health, safety, and good order, contending that regulating working hours fit well within that boundary. Indeed, the law’s passage rested on a reasonable presentation that excess working hours directly harmed the health and safety of workers. Harlan wrote, “That ought to be the end of this case.” He also noted that the majority decision would “involve consequences of a far-reaching and mischievous character,” as it would “seriously cripple the inherent power of the States to care for the lives, health and wellbeing of their citizens.”
He was right. While the Court believed bakers didn’t deserve protections, it upheld a ten-hour workday for workers in mills, factories, and manufacturing in Bunting v. Oregon (1917). For several decades, which occupations the Supreme Court would deem subject to which labor market protections was a guessing game. There could be giant swings in the justices’ actions depending on when you caught them, with more aggressive decisions against regulations before 1911 and again after 1923. This ambiguity was weaponized by people who wanted to not only strike down economic laws, but also prevent them in the first place. Defenders of the Lochner decision argue that the Supreme Court didn’t strike down a significant amount of economic bills during this time. But these decisions did chill and warp the imagination and actions of those looking for ways to push back against social problems. Judicial review led to a permanent and incoherent threat hanging over each and every law. This limited and distorted the possibilities and ambitions of what could be done, something that would weaken solutions up to and through the New Deal. This was no way to try to tackle the new and widespread problems of an industrial society.
But there’s a deeper criticism of the courts in those years, as the second dissent in Lochner makes clear. In his brief argument, Justice Oliver Wendell Holmes Jr. wrote that the Constitution “is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” As he infamously put it, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” referring to an economics text embodying the conservative laissez-faire ideas of the time.
Holmes was pointing out that the market is not truly neutral. Holmes cited limitations on usury, lotteries, and stock market speculation and the prohibition of certain activities on Sundays, as well as compulsory vaccination laws. All of these imposed some limitation on the ability of people to contract, and all of them had been debated in public forums. The state had taken any number of actions that benefited the owners of capital, including incorporation, limiting the liability of shareholders, creating laws for bankruptcy, and enforcing contracts. The courts had no problem with this, as they also had no problem with using antitrust laws against unions or issuing injunctions that prevented workers from striking. The only time that courts called foul was when laws provided better protections for workers. Their willingness to use a very specific understanding of economics to override law not only oversteps their mandate, it also writes a preferential view of economics—and freedom— into the Constitution itself.
Holmes’s dissent in Lochner argued that there ought to be a democratic process for establishing how to set up such a system. Holmes himself likely had conservative economic views, and probably thought that efforts by working people to make their lives better through legislation were not likely to achieve very much. However, he understood that it was an open question, and he detested the certainty that came with the judiciary putting specific theories about the economy into practice. A constitution, Holmes wrote, “is made for people of fundamentally differing views” to experiment and try to find answers. Holmes was influenced by the new school of thought known as pragmatism, which contended that the search for truth ought to be modeled on a experimentation and evolutionary understanding. So, too, should the definition of freedom in an industrial economy.
The dream of an American economy built around small-scale land ownership, so important to political movements in the 1850s, quickly fell apart as industrialization took over the country. The transition to wage labor changed the lives of American workers to the point where they no longer had any control over their hours. And they resisted, articulating how their own freedom was tied to being able to control their own time, from being with their families to serving as active members in their communities. Free time was understood to be a checking mechanism on the market. Fewer working hours could mean more stable employment, which was especially important as recessions and the advent of technology devastated jobs. It could also mean higher wages, which in turn would generate higher productivity, fight the effects of recessions, and give workers a claim on all the wealth they created. It was a demand for more—more of the good things in life. Workers built movements around this idea, which would find a home in the New Deal. In our own era, where we feel that we have no control over our working hours, this is a vision of freedom worth recapturing.
Copyright © 2021 by Mike Konczal. This excerpt was adapted from Freedom from the Market: America’s Fight to Liberate Itself from the Grip of the Invisible Hand by Mike Konczal. Published by The New Press. Reprinted here with permission.