William W. Fisher III Labor alone.To a large extent, Forbath argues, that shift can be attributed to the seductive discourse of the law. Demeaned and demoralized by relentlessly anti-labor judicial decisions, American workers beginning around 1900 concentrated almost all their energies on the limited goal of securing “freedom of combination and collective action, freedomto strike and boycott.” The set of arguments most likely to attain those ends, they sensibly concluded, was not the ambitious, utopian vocabulary of republicanism, but a variant of the liberal “rights” discourse that the courts had been deploying against them. Freedom and formal equality (freedom of contract, freedom of speech, and opportunities to “compete” on an equal footing with employers) - not citizenship, civic virtue, and social and economic equality - became the central concepts both in the requests they made of courts and legislatures and in their conversations among themselves. To be sure, the workers did not merely parrot the arguments of their oppressors; they modified the language of liberalism to suit their own ends - incorporating, for example, a radical interpretation of the Thirteenth Amendment. And thev can hardlv be blamed for their abandonment of the republican vision; it undoubtedly would have been less effective in securing the minimal legal reforms they needed. But the ultimate effect was to deprive American workers of the rhetorical resources they would have needed to mount a serious challenge to the status quo. The cost of adoption of the Ianguage of the law was “acceptance of the naturalness of the capitalist marketplace, the inevitability of marketplace conflict, and the legitimacy of the competitive freedomenjoyed by corporations.” In short, in Forbath’s hands the contextualist method produces an unusually subtle account of the process of cultural hegemony. One of the things that makes his argument so powerful is the care with which he traces lines of linguistic influence from lawyers to labor leaders. Too often, contextualist historians content themselves with identifying similarities between the vocabularies employed during the same period in two discursive communities, inferring a causal connection betw-een the two.'°° Forbath goes further, showing in detail when and how labor leaders adopted “arguments, analogies, and metaphors inspired by the common law.”*^' Similar attention to modes of linguistic transmission would considerably enhance the explanatory power of other contextualist legal histories. 54 The quotation is from Samuel Gompers, “Judicial Vindication of Labor’s Claims,” American Federationist 7 (1901); 283, 284. Forbath’s description of this shift is contained in chapter 2 of his book. Hovencamp’s othersvise powerful study of the relationship between classical economic theory and postbellumlegal doctrine is unfortunately weak on this score. See Victoria A. Saker, “Between a Doctrine and a Hard Place,” Revieivs in American History 21 (1993): 279; Christopher L. Tomlins, Review of Enterprise andAmerican Laiz', Law & History Review 11 (1993): 198. Forbath, supra n. 97, 128 ff. 100
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