Forbath on Radical Lawyering and Constitutional Imagination on the Lower East Side

William E. Forbath, University of Texas at Austin School of Law, has posted Class Struggle, Group Rights and Socialist Pluralism on the Lower East Side–Radical Lawyering and Constitutional Imagination in the Early Twentieth Century:

This paper is a rough draft of two chapters in a book-in-progress. It explores the advocacy, institution-building and constitutional imaginary of a handful of socialist lawyers, as they helped build the International Ladies Garment Workers Union in early twentieth century New York. These lawyer-leaders along with union chiefs, thousands of rank and file leaders and activists, and hundreds of thousands of new immigrant workers waged massive general strikes and forged industry-wide agreements and collective bargaining, while they also clashed over just how democratic and pluralist their socialist union would be.

These struggles were a site of constant legal invention. They drew new immigrant workers into a deeply contentious experiment in reconstructing labor-capital relations on the basis of group rights with no footing in the official legal order: to organize, strike, and bargain on an industry-wide basis, to be dealt with by employers not as individual workers but as one big corporate body. The official order did more than refuse to recognize these rights; it condemned workers’ efforts to exercise them. Yet, despite the courts’ best efforts, this dramatic experiment largely succeeded; and the union membership ending up rallying behind the lawyer-leaders and activists committed to a deeply democratic, federated, socialist and multi-cultural vision of “group rights” and union organization.

Jewish Workers in N.Y. Needle Trades (NYPL)

In the process, they forged a new rights consciousness - a consciousness of both peoplehood and class, mixing ethno-racial and class based conceptions of group rights. Not simply a brand of rights talk, it was a social and constitutional imaginary. Such an imaginary dwells at the intersection of ideas and social action. It is an assembly of analytic, normative and narrative pieces, along with what Raymond Williams calls “structures of feeling.” An imaginary gains traction in virtue of its capacity to express ideas, aspirations and normative principles about social structures and social relations, at the same time as it explains and helps reproduce – or, in the case of a counter-hegemonic imaginary like this one, helps efforts to remake – those structures and relations. The Jewish socialist constitutional imaginary whose adventures the paper follows did all three: expressed, explained and helped remake.

In addition to testing out the notion of a constitutional imaginary, this paper about the past has a present political point. Today, corporate and group rights are found mostly in the normative and conceptual toolkits of various kinds of conservative thinkers. Liberals and progressives see them as fraught with dangers for individual freedom. If liberal democracy is imperiled, the response should be shoring up the individual civil rights and civil liberties of post-New Deal liberalism, enshrined by the Warren and Burger Courts.

A century ago, things looked different. When left-leaning liberals, “advanced Progressives” and socialists imagined what might come next, after the overthrow of constitutional laissez-faire, it was not only Jews like the ones in this paper but many others who hoped that group rights would be part of the new constitutional firmament. Like left-leaning legal, political and social thinkers in many parts of the globe, they thought that modern liberalism could not make good on its promises of individual freedom and equality unless it took on board key precepts from its rivals and interlocutors: pluralism and socialism. They saw corporate and group rights as building blocks of a social-democratic and pluralist liberalism – or of a liberal and pluralist socialism. Individual rights alone could not secure a broad distribution of power on behalf of members of subordinate economic and ethno-racial groups. That kind of distributional work also required group rights.

When the dust settled, of course, there were no such group rights in the post-New Deal firmament. There were some individual rights doing certain kinds of functionally similar work. But in the politico-constitutional milieu of the Cold War, even these were pressed into an older liberal legal mold. So, one of the ambitions of this work-in-progress is to acquaint liberal and progressive readers with an alternate brand of American constitutionalism in action, more pluralist and socialist than the one we got.

During the Cold War, the socialist pluralist outlook of the lawyer-leaders in this story was repressed and forgotten. It had features worth remembering. It refused to choose between ethno-racial particularity and class universalism. It fashioned institutions, forms of advocacy and a legal and constitutional discourse that took up the competing claims of socialism, pluralism and liberalism, and individual and group rights, mediating the inescapable tensions among them and subjecting them all to stubbornly democratic principles. It rejected the notion of putting off the empowerment of ordinary workers for the indefinite socialist future, instead striving to implement it in the capitalist present, with the legal and institutional tools at hand. Its practitioners explained their ethics and style of advocacy in terms of the moral and political logic of a social movement that strives to prefigure the kind of world it hopes to create. It also rejected prevailing romantic, racialist conceptions of ethno-racial group identities, in favor of a pragmatic, open-ended view that emphasized democratic agency, change and self-invention. As we revisit the socialist tradition, this chapter in socialist history and legal history offers food for thought.

--Dan Ernst