Rule by Injunction?

Enforcement of Equitable Decrees 

The rule of thumb distinction between law and equity is that equity is in personam relief.  In the law courts monetary damages is the archetypical remed.  In the equity tradition the person is the object of justice.

A fundamental problem in  law is the primacy of positive, written law. Every system struggles with the   the tension between norms and commands.  In Chinese law Fa 法鲁 contends with 礼 Li - custom or norm. In religions of the book the Torah, the Gospels, the Quran all present themselves as the words of God or the agents of God.  But commands are often so broad (thou shalt not kill) that every system must elaborate its teaching on how to apply the general principles to particular situations.  In the Catholic tradition this is the product of revelation, the teaching of the magisterium, and the experience of the faithful.  In our tradition original understanding contends with the application of generalities such as due process, cruel and unusual punishment, equal protection, and the right to bear arms.

In England the law developed as a struggle between the middle class who emphasized free choice and the landed who emphasized the right to unfettered control of property.  The middle class developed law as the product of contract, and statute.  The prerogatives of the sovereign - in whose person power resided - combined with the sovereign's arrogation of the role of head of the Church.  The province of the Chancellor therefore was law adapted to the needs of the person, rather than enforcement of contract or the commands of written law.  

Because the sovereign also claimed authority over the entire realm the public interest also prevailed over the prerogatives of petitioners and respondents.  The remedial focus of chancery - the equity tradition - thus was in tension between the person and the interests of the public.  We see this now in the conventional locus of equitable remedies as "in personam" rather than "in rem".  Our system has, thus, replicated the inherent problem of subjectivity vs. objectivity - of individualized personal relief vs. the power and rigidity of the written word.   When either fails the law turns to the other.

The merchants and landowners who created the U.S. system were united in their resentment of the government of England - in which they had no say - they were uniquely resentful and subject to the sovereign King of England.  They therefore separated the judges from the executive (the Magistrate) and consolidated both Law and equity" in the hands of the judiciary in Article III of the Constitution.  Judges were doubly insulated from any leveling impulse or direct factional control by confirmation by the Senate (members selected by state Legislators not voters) and by life tenure during good behaviour.

But unified judicial authority proved deeply problematic.  The Supreme Court barred Maryland from burdening the national bank, and Pennsylvania from protecting the many fugitive slaves who entered from Maryland and Virginia. Ultimately the Supreme Court allied even more decisively with the slaveholders as Congress expanded slaveholding both north and west.  Civil War followed. 

Despite  the  post civil war 13th, 14th, and 15th Amendments to the national Constitution the Supreme Court deployed its power under Article III to limit the 14th Amendment's promises of equal protection and due process.  It left the states free to keep women in subordination, and to strip African Americans of the protections and citizenship rights promised. 

But as the nation was transformed by conquest into a continental power deference to state power proved problematic.  This was most dramatically exemplified by the passivity of the states and local governments when an emerging labor union - the American Railway Union - struck the Pullman Sleeping car company and crippled the interstate rail system by refusing to serve any train that carried its passengers.

In an unprecedented move the United States Department of Justice in In re Eugene Debs v. United States (1895,) citing the federal power to regulate interstate commerce, assumed the law enforcement role of state and local police and courts.   The Attorney General without statutory or substantial precedential support obtained an order barring the solidarity strike, jailing the Union's leader Eugene Debs, and deputizing thousands of men employed by the Pinkerton Company to block the picket lines formed by striking rail workers. 

In  the forty years that followed, as the trade union movement grew in size and importance the Supreme Court sanctioned the use of the anti-strike injunction and blocked states from passing laws to limit hours of labor and conditions of employment. The archetypal exercise of such power was in Lochner v. New York (1905).  Citing what Marx once called "that single, unconscionable freedom" - that of contract, the Supreme Court struck down a New York law limiting bakers hours of work to 60 per week.  That violated the Due Process clause of the 14th Amendment which protected  freedom of contact, according to the Court in its epochal decision.

The Lochner era would end only in the mid-1930s after the 1932 passage of the Norris LaGuardia Act which stripped the courts of jurisdiction to issue anti-strike injunctions .  In 1935 the National Labor Relations Act protected the right of workers in private industry to form unions, to strike, and engage in other kinds of "concerted activity". In 1938 the Court in Carolene Products declared that measures addressed to the public health and welfare would be subject only to "rational basis"" review by the Courts of the United States.

- GWC March 24, 2023