Policing and the Police

Today, the police and related security personnel are everywhere. As of the last national survey in 2008, state and local law enforcement “employed more than 1.1 million persons on a full-time basis, including about 765,000 sworn personnel (defined as those with general arrest powers),” along with 100,000 part-time employees. ^{Footnote 9} The state also employed 460,534 National Guardsmen (as of 2007) ^{Footnote 10} and about 120,000 members of the FBI and other domestic security agencies. ^{Footnote 11} According to the most recent Bureau of Labor Statistics data, another 880,000 are employed in the private sector category of “investigation and security services”—most as security guards. ^{Footnote 12} There are about 5,000 correctional facilities ^{Footnote 13} housing 2,220,300 prisoners ^{Footnote 14} and a further 4,751,400 people were on parole or probation. ^{Footnote 15} They were monitored by 469,500 prison guards ^{Footnote 16} and 90,300 parole officers. ^{Footnote 17}

As Sam Mitrani observes in his excellent history, The Rise of the Chicago Police Department, “the police are now so ubiquitous that it is hard to imagine a time before they existed.” Yet, as he further reminds us, “the police evolved relatively late in U.S. history” (p. 217). The first police departments were created in the mid-nineteenth century, and they only became a major part of urban politics with the late 19^th century industrialization of the United States, a good hundred years after the creation of the republic. How do we explain the relatively recent growth of police activity?

These days, the most ready-to-hand explanation is race. From “broken windows” policing of everyday life to racist sentencing practices, from mass incarceration to the killing of unarmed black men like Eric Garner and Michael Brown, the answer seems to be that we live with the most recent iteration of a racist history, marked by the original sin of slavery. However, race is but one part of the story, and one that can only be understood when put in the context of what policing is and why it emerged. Here again, Mitrani is correct to say that “the development of police forces marked something entirely new in human history” (p. 2), and whose novelty was felt just as much in the urban North and relatively free West as in the slaveholding South.

The police are new in the sense that they are formally constituted, permanent forces that bear the authority of the public law that they enforce. They are not privately hired security forces carrying out the personal commands of a specific individual, nor are they momentary bodies of concerned citizens. For instance, in the early republic, law enforcement took the form of posses, formed of citizens who temporarily came together under the color of law to apprehend specific criminals (pp. 1–20). ^{Footnote 18} Further in the feudal past in Europe, legal authority was regionally fragmented and personal. Each person was covered by particularized laws “prive-leges.” All those in a particular location lived under the authority of the local lord, who controlled private forces of violence, and was himself personally bound to a king. Anyone who managed to leave a particular area thereby also escaped its juridical authority. Hence, the “vagabond,” or person without bond and thus not subject to a given authority. Early modern cities had a reputation for lawlessness. There, a vagabond became a “bourgeois,” or free city dweller. It was unclear who ruled and thus how to guarantee the subjection of the lower orders that dominated urban environments. That is why these free cities were themselves specially protected zones, often a privilege granted by a sovereign, rather than the model for an entire social order.

The growth of capitalism, and in particular the free laborer, radically disrupted inherited mechanisms of aligning authority and social control. The wage laborer owned his own labor and owed no particular individual any service. He was free to move between and among jurisdictions, to quit his job, to choose his associates, his leisure activities, and his family relations. It is worth recalling just how much anxiety this “daily drudge in agricultural or mechanical labour” produced in the early Founders ^{Footnote 19} : “The mobs of great cities add just so much to the support of pure government, as sores do to the strength of the human body,” wrote Thomas Jefferson, ^{Footnote 20} who saw in the classical mix of slavery and petty proprietorship the only secure basis for republican institutions, largely because it squeezed out the free poor. ^{Footnote 21} Small farmers were dedicated to their small properties, and thus unlikely to challenge the existing social order, while slaves were under the personal authority of private masters. On this view, modern liberty needed the support of premodern social arrangements. This quasi-feudalization of economic (and family) relations was a feature of American politics well into the twentieth century. As Karen Orren showed many years ago, the persistence of master—servant law as the governing legal relations of the factory was a sign of just how difficult it has been to establish even formal equality in a liberal capitalist society. ^{Footnote 22}

The company town, in which a single employer exercises influence over every aspect of life, is another example of the way in which quasi-feudal relations get rehabilitated to solve the problem of social control under capitalism. Nineteenth-century towns like Lowell, Massachusets, or Pullman, Illinois, were famous instances of this paternalistic approach. Pullman was an eponymous model town that sleeping-car magnate George Pullman created for employees at his main factory. He aimed to provide “an orderly existence for his workers, including homes, a church, even a theater,” as well as “a reading room, a billiards hall, and outdoor sports,” but notably no brothels or saloons, not to mention gathering places not under Pullman’s surveillance (The Rise of the Chicago Police Department, pp. 209–10). This capitalist paternalism, in which the employer provided public goods in exchange for obedience, was a revived form of the feudal manor, in which the capitalist replaced the lord, engaging in various forms of social control and enjoying wide-ranging authority well beyond management of the workplace.

Austin, Minnesota, home to the aforementioned Hormel strike, was also a company town, and not accidentally one in which Hormel executives exercised influence over school boards, city newspapers, and the local police. Both Pullman and Austin experienced serious strikes, which quickly overwhelmed their soft-power approach, not to mention the private and local security forces at their disposal. All of which speaks to the limits of the paternalist strategy as an answer to the problem of social control. Of course, it remained; indeed it still remains. A recent strike in the American Northeast by Market Basket employees, hoping to reinstate the good boss who benevolently granted vacation and sick leave and occasionally packed groceries with his cashiers, is an example. But such relationships exist in the interstices of a legal and social order secured by very different arrangements.

The ultimate guarantee of the social order is the police, that modern answer to the problem of individual freedom: a professional apparatus, publicly funded, permanently constituted, and acting with the authority of the people themselves. In saying “the police,” we really speak of two analytically distinct innovations. One is the activity of policing; the other is the institution of the police. Policing involves the full array of disciplinary, welfare, and repressive functions that the state exercises in order to guarantee social order. ^{Footnote 23} These functions are distributed across a host of agencies, from welfare offices to National Guardsmen. Then there are the police, the most regular and daily point of contact between the state and the daily life of the free citizen.

“Matters Not criminal”

Notably, the original function of the police was not solving crime, for which it was ill-suited, but other activities. The early police primarily arrested prostitutes, drunks, and other urban idlers who could not give a socially acceptable account of themselves. ^{Footnote 24} The early chapters of Mitrani’s history of the Chicago Police Department are filled with examples of the attempt to discipline and control this free, urban population. Riots by German immigrants over liquor licensing, known as the Lager Riots, prompted elite concerns about law and order in the city and spurred the formation of the city’s Police Department (pp. 15–16, 24–33). The Chicago City Council’s Committee on Police, tasked in the 1850s with establishing a modern police force, openly stated that the police should have wide latitude, since “matters not criminal in particulars, but which if permitted to go unchecked in a dense population like ours, would result very injuriously to the city” (p. 27). This policing of working-class leisure activities quickly showed up in arrest records. For instance, in 1862, three-quarters of the arrests were for “drunk and disorderly” conduct or for visiting houses of “disorder” or “ill fame” (p. 54). In 1878, about half of the arrests fit that category, and more than two-thirds of the arrests in Chicago could be attributed to the “rum traffic,” that first and longest-running of America’s drug wars (p. 136). In Chicago, it was originally Irish and Germans caught in the net, but soon other eastern and southern Europeans, like Poles and Hungarians, were added to the mix.

There are two points to make here. First, quality-of-life policing, rehabilitated in the 1980s under the “broken windows” theory, is as old as the police itself. It has, in its contemporary manifestation, taken on especially carceral and racist overtones, but it was never confined to a single race. Controlling populations by going after the “drunk and disorderly”—loiterers and vagrants—is one of the longest-standing practices of policing. Second, its target has always been those free but poor elements not already under the authority of specific masters. The poor have always been overpoliced, no matter their color. If there is a flaw in Mitrani’s presentation of the policing of free time, it is in the way he suggests that it stemmed from a mix of elite cultural hostility and anxiety about the general lack of social control. In fact, one of the class concerns with respect to free time—whether it involved loitering on streets, drinking in saloons, or hanging around disreputable establishments—was that it quickly became political. Picnics and sporting events, dances, and, believe it or not, roller-skating (p. 156) were not just activities that the elite felt loosened morals and sapped work discipline; they were also moments when anarchists gave speeches, socialists distributed pamphlets, workers raised strike funds, and unions built a distinct class culture. ^{Footnote 25}

If Mitrani underplays the connection of free time and politics, he uses the growth of working-class militancy to great effect when answering an important puzzle: Why would the ruling class, especially the most powerful urban elites, want a publicly funded police? Why would the wealthy accept being taxed to fund a group of well-armed individuals to enforce laws equally upon everyone, rather than use their funds to hire private guards who owe personal service to their employers? This was a real historical question. From the Pinkerton security agencies to the less-famous hired thugs to Harvard and Yale students-as-strikebreakers, employers initially went for the neofeudal solution when looking to break strikes. ^{Footnote 26} Given the opportunities for corruption and the general unreliability of the police, Chicago’s leading figures resisted paying the necessary taxes to adequately fund a regular, well-armed force, and were similarly reluctant to grant them much of a role besides general harassment of the urban poor. It took time to win over the Marshall Fields (departments stores), Cyrus McCormicks (agricultural equipment), Philip Armours (meatpacking), and George Pullmans (railroads) to the funding of an official and independent police. It was only when Chicago’s workers began to go on strike en masse, with a discipline and organization that overwhelmed private security, that Chicago’s elites started to see the virtues of a permanent, well-trained, paramilitary force speaking the neutral language of law and order.

The shift did not take place overnight. Indeed, as Mitrani shows, any number of cross-cutting pressures, such as religion, ethnicity, and economic differences between the haute and petty bourgeoisie, meant that it took repeated experience with increasingly militant strikes for Chicago’s capitalist class to put these differences aside and finally produce a professional police. The Great Strike of 1877, which shook the entire country, was the first pivotal moment in producing what Mitrani aptly names the “law and order consensus” (p. 112). Chicago’s neighbor, St. Louis, temporarily fell under the control of a citywide strike committee; federal troops fanned out across the country to shore up overwhelmed municipal police and private security; and the industrial North’s attention turned decisively from disciplining recalcitrant southern elites to the problem of class violence. The militarization of the modern state had begun. We easily forget the prolonged period of violence among labor, capitalists, and the state that the Great Strike inaugurated, and which only began its long decline after the strike wave of 1947. But it was decisive for the formation of modern police forces.

As Mitrani notes, Chicago’s police handled the Great Strike of 1877 relatively better than did other municipal police forces, and was rewarded with more money, power, and authority (pp. 134–65). But police forces expanded everywhere and, most importantly, were made more “professional.” This meant separating them from direct control of the democratically elected city councils and instead organizing them according to a strict chain of command, with control over its own hiring and firing policies, and with more military training. The policing of the working class would take on a harder edge as strikebreaking became an increasingly important function of the police. In this case, Chicago was a test case for the nation. While the police occasionally sympathized with local workers, even those cops in smaller, more tightly knit towns were usually willing to let loose on strikers. ^{Footnote 27} In teeming immigrant cities like industrial Chicago, cosmopolitan New York, and mercantile Buffalo (one of the richest cities in the United States in the 1900s), it was that much easier for the police to identify with themselves rather than with the class from which they were primarily drawn.

From the Police to the Military and Back

The first indication of the increasing violence to come was the turbulent year of 1886 when the Knights of Labor, a massive political organization of skilled and unskilled labor, could claim more than a million members. In Chicago, where worker militias had paraded as armed self-defense committees for years, membership in anarchist and socialist groups were also rapidly increasing (pp. 136, 166–84). It was a year when various cities across the United States, most spectacularly Chicago, started to acquire the aura of occupied cities. The famous Haymarket incident, in which workers striking for an eight-hour day were killed and, a few days later, Chicago police died in a mysterious bomb explosion, was the turning of the tide against labor that year. Well before Haymarket, the city’s elites had tried to demonize labor’s Left and Center. “Load Your Guns, They Will Be Needed Tomorrow to Shoot Communists,” read one Chicago Times headline from 1875, responding to a possible demonstration of socialists and reformers against the city’s half-hearted efforts to address poverty. But now, in 1886, the police had found their living, breathing bête noire—anarchists, who were blamed for the bomb, rounded up, given show trials, some executed, their presses smashed, and civil liberties generally discarded.

After Haymarket, an organization of Chicago’s wealthiest businessmen, called the Commercial Club, raised $300,000 in private donations to buy land and equipment for a military base (the eventual Fort Sheridan) located next to the city, not for protection against a foreign enemy but from the people of Chicago themselves (p. 139). Other cities and towns followed suit, finding use for martial law and building forbidding, well-stocked armories smack in the middle of their urban populations (p. 195). ^{Footnote 28}

While these more militarized and professional police forces were formally independent of any social group, they retained close connections to powerful individuals. Some of these ties were moderate and informal. During the 1886 lockout of the McCormick Reaper Works, 200 police broke a wall of picketers and then, for good measure, attacked the Union House saloon near the plant, beating strikebreakers. McCormick gave free meals to the police guarding the entrance (p. 164). More pointed was the private funding of public forces. The $300,000 raised for the Chicago military base was not the first time the state looked a little like the “committee for managing the common affairs of the whole bourgeoisie.” ^{Footnote 29} In 1877, the Citizens Association, a precursor to the Commercial Club, responded to strike riots by raising $28,000, which they used to buy rifles, cannons, cavalry equipment, and a Gatling gun for public forces (p. 131). In February 1886, the Commercial Club provided $2,000 to supply the First Infantry Regiment with a machine gun to use against strikers (p. 186). A few months later, the Club, anticipating a major strike, announced that “the public importance of a military post near Chicago is manifest”; this led to the financing and building of the base (p. 187).

These one-off levies were often followed by a new elite willingness to pay higher taxes to fund regular police. During strikes, police in cities like Milwaukee, Buffalo, Chicago, and Akron often swore in privately hired detectives and security forces as “special deputies,” acting under color of law, and thus relatively immune from prosecution for what amounted to vigilante justice. ^{Footnote 30} In 1894, mine owners “pledged money and arms” to finance a body of 1,200 men, hastily sworn in as deputies, to police striking miners in Cripple Creek, Colorado, and in that same year, railroad companies helped pay for 14,000 troops, militia, and deputy marshals to occupy Chicago during the Pullman strike (Strike! pp. 84, 93). Such practices extended well into the twentieth century. In 1934, during the sit-down strike against the Auto-Lite car parts plant in Toledo, Ohio, the company paid the sheriff to deputize special police to arrest and beat the strikers (ibid., p. 155).

Then there were times when the agents of the formally neutral state became indistinguishable from the employers it defended. As far back as 1834, President Andrew Jackson became the first to use federal troops to break a strike when asked to do so by his longtime friend, the president of the Chesapeake and Ohio Canal, then suffering from labor troubles. ^{Footnote 31} Judges, generals, and officers were, for a long time, almost exclusively upper class. During the 1892 switchmen’s strike in Buffalo, the superintendent of the struck railroad was also the general leading 5,000 state militia into Buffalo to help the police break the strike. They closed taverns, seized pro-strike leaflets, arrested strike leaders on trumped-up charges, implemented a police chief order to clear the city of “tramps” and “troublemakers,” and enforced a mayoral proclamation that “forbade congregating in the streets in working-class districts.” ^{Footnote 32}

In 1894, when the Pullman strike had spread across the country, paralyzing commerce from Los Angeles to Chicago, then—Attorney General Richard Olney carpeted every state from Michigan to California with blanket injunctions. These injunctions forbade strike activity and turned boycotting, picketing, and public speaking into federal crimes, effectively transforming the conflict into one between workers and the state. They were a kind of carte blanche for the mass suspension of civil liberties and meant that troops, guardsmen, and local police operated with federal authority when arresting hundreds, beating dozens, and killing many in the process of breaking the strike. Olney happened to be a former railroad attorney and, at the time of the strike, was still a railroad director.

Here, then, were various ways in which, in its formative stages, the main security forces remained under the influence—even direct control—of the wealthy. Despite their formal separation, state and property were perceived to have the same identity when it came to repression.

Strikes prompted the growth not just of the police but of a variegated repressive apparatus. When the police were overwhelmed, such as during the major strike waves of 1877, 1886, 1894, 1919, and 1933–37, then state militia, National Guards, and even federal troops stepped in. Although the use of federal troops continued all the way through to Reagan-era strikes, like the one at Hormel, it was between the Civil War and the New Deal that they saw their most consistent action. As one study has put it, “substantially larger numbers of troops were deployed in response to labor disturbances … than were assembled for any other reason right up to the Spanish-American War.” ^{Footnote 33} Authors of a comparative analysis of the period between the Civil War and the New Deal conclude that “the United States has had the bloodiest and most violent labor history of any industrial nation in the world.” ^{Footnote 34}

The use of national troops was touchy since this was, after all, a free citizenry with civil liberties, rather than an enemy force. Senate inquiries into these events sometimes produced such questions as whether “a cultured gentleman, approves the use of a machine gun on a populous village.” ^{Footnote 35} But these concerns did not stop armed forces from gunning down strikers and their families in the coal fields of Coeur d’Alène, Oliver Springs, and Coal Creek, ^{Footnote 36} nor of occupying towns like Newport, Kentucky, with tanks to enforce martial law. ^{Footnote 37} In this sense, it was not just the police involved in policing. As one author puts it, for many decades “the U.S. Army came close to being a national police force.” ^{Footnote 38} Nor were militias and federal troops the only state agencies involved. As Josiah Lambert observes in his superb history of the right to strike:

The police had a special place in this complex machinery of violence. As first responders, the police had to increasingly take on the aspect of a military force. Not only were leading police officials often former military personnel, but one of the key ways in which police were “professionalized” in the late nineteenth and early twentieth century was also by giving them military training. They acquired uniforms, learned to march, developed new officer training programs, performed drills like soldiers, and, through it all, acquired an esprit de corps that was institutionalized in such bodies as policemen’s benevolent associations and relief funds (Rise of Chicago Police, pp. 130, 142, 195). ^{Footnote 40} The militarization of the police was the product of their new, modern role as strikebreakers.

Class Conflict and the American Past

If I have been emphasizing the grim, violent edge of police activity, it is worth thinking a bit more about the class conflict to which it was a response. In the other book under review here, Jeremy Brecher’s recently updated Strike!, we have just about the only synthetic account of mass strikes in America. ^{Footnote 41} This book stands as a reminder of the extraordinary scope of labor militancy and solidarity in American history. Aside from some of the dates already mentioned, there was the Seattle general strike of 1919, in which workers took control of most of the city; the Great Depression—era strikes, which produced two general strikes in San Francisco and Minneapolis, as well as the famous commerce-paralyzing sit-down strikes; and the flying squadrons of the East Coast textile strikes. In 1894, there were 750,000 workers out on strike (p. 77); between 1919 and 1920, not only did the entire city of Seattle go on strike but more than a million telephone operators, steelworkers, miners, textile workers, and policemen were also out (pp. 101–38). Even as late as the period between 1948 and 1953, “over half the recorded days lost to strikes” in the entire world were in the United States. ^{Footnote 42}

The degree to which these strikes looked like civil war is often forgotten. For example, in an episode Brecher does not discuss, in 1921, 20,000 West Virginia miners took up arms and fought off combined forces of coal operators and the state. They laid down their weapons only after President Warren Harding put all of West Virginia under martial law and sent in federal troops and air power. ^{Footnote 43} Or, to choose some lesser-known examples from Brecher’s book: In 1892, steel and coal strikes in three different locations involved “organized, armed resistance by groups of workers to military attack” (p. 77); in 1922, strikers in Illinois rented a plane to drop dynamite on National Guardsmen and strikebreakers (p. 136); in 1934, a teamster drove a truck into police who drew guns on a “citizen’s army” of strikers (pp. 158–59).

When Brecher first published the book in 1972, he rode the last wave of labor insurgency. Strikes of a thousand or more workers peaked in 1974, at 424. At the time, he hoped to cast this class consciousness as part of the wider wave of antiauthoritarian social movements. And indeed, the story Brecher tells of, say, the Seattle general strike, in which workers ran the city on their own through the General Strike Committee, would have been an inspiring model of militancy coupled with democratic self-government (pp. 101–13). Twenty-five years later, his narrative of America’s great mass strikes reads like some kind of mythological tale, not just from another time but from another land populated by different people. Last year there were 11 major strikes, the second lowest in recorded history after the paltry five in 2009. ^{Footnote 44} This amounts to a roughly 97% decline from the 1974 peak.

For every well-known period of mass strike activity that we find in Brecher’s book, it has to be recalled that there were countless other “everyday” strikes. Though less epoch making, they were just as important in demonstrating the role of police in controlling labor. For instance, I have on my desk a photograph from the 1912 Lawrence textile strike. It shows a long line of children standing with their working-class parents holding luggage. The line looks like any number of twentieth-century photographs of bedraggled refugees, waiting in impossibly long lines for some form of transportation to take them away from a war zone. In this case, Lawrence’s workers had decided to send their children to relatives or volunteer families because strike funds were depleted, supplies were low, and skirmishes with the police and state militia were raising safety concerns. The first two waves of these children had been so effective in generating public support for the strike that when a third group of parents decided to send their children, this time to Philadelphia, employers and corrupt city officials set about on a counterattack. The police chief ordered police to block access to the trains. Fighting ensued, and men, women, and children were beaten and arrested—whole families herded into trucks and sent to the Lawrence Police Station. ^{Footnote 45} It is an astonishing event. In the name of preserving law and order, police violently seized the parents’ property (their train tickets), unlawfully suspended their rights of movement and assembly, prevented them from protecting their own children, and penned them into their own city.

Lawrence was one of many such episodes. It was this recurring, decade-upon-decade, city-by-town labor militancy that transformed the police into the weaponized agents of law and order. If so much of this policing of labor has been forgotten, at least as part of our official history, it has left its traces without our fully realizing it. For instance, Justice Oliver Wendell Holmes’s famous dictum that one should not shout fire in a crowded theater was taken, in a distorted way, from a real historical event: the Christmas Eve massacre. On December 24, 1913, hundreds of striking miners and their families gathered on the second floor of a banquet hall in Calumet, Michigan. The evening’s party doubled as a fund-raiser for the strikers. Somebody yelled fire, and in the ensuing stampede down the narrow staircase, 73 people, mostly children, were killed. The event generated a public inquiry and national news coverage, some of which Holmes himself very likely read. Nobody was ever indicted, although most suspected an agent provocateur, and numerous witnesses swore to a House committee that the instigator wore the badge of the Citizens Alliance—the anti-union trade association that was pitted against the strikers. ^{Footnote 46}

Another historical trace is in the use of fire hoses for crowd control. One of the other photographs I have on my desk is of police standing in the middle of a city street holding long, snaking hoses and spraying a crowd. The grainy image of silhouetted bodies, pressed against one another, ducking and shrinking away from the force of the water, is so familiar that on first take, one assumes it is a photograph from the 1950s or 1960s Civil Rights movement. In fact, it is a photo of San Diego police in 1912 breaking up a crowd of migrant workers listening to members of the International Workers of the World (IWW), who, merely by addressing the workers, were violating a recently passed city ordinance prohibiting political speech in the downtown area. Police eventually turned to more aggressive measures, arresting dozens, building special ad hoc holding pens, and cooperating with vigilantes to fight the growing number of socialists. The San Diego Tribune called for blood: “Hanging is none too good for them, and they would be much better off dead; for they are absolutely useless in the human economy; they are the waste material of creation and should be drained off into the sewer of oblivion there to rot in cold obstruction like any other excrement.” ^{Footnote 47}

While official policy never reached as far as this appeal for class cleansing, some Wobblies were killed, many beaten, especially by business-funded vigilantes. Fire hoses, it turned out, were just the beginning of an “incident [that] probably marks the first time in the history of San Diego County that the police chief, the sheriff and the marshal had willingly worked together in the interests of law enforcement.” ^{Footnote 48} A subsequent public inquiry by a special commissioner noted: “The question naturally arises, therefore, who are the greater criminals; who are the real anarchists; who are the real violators of the constitution; who are the real undesirables.” ^{Footnote 49} From fire hoses to vigilante goon squads, the scenes of modern crowd control are also a bequest of these episodes.

One of the most interesting historical traces left to us by the long period of labor repression comes in the form of Martin Luther King, Jr.’s famous “Letter from a Birmingham Jail.” King was in jail for having violated an injunction, approved by Alabama's Tenth Circuit Judge, W. A. Jenkins, that prohibited “unlawful acts of parading, demonstrating, boycotting, trespassing and picketing or other unlawful acts” in Birmingham, Alabama. ^{Footnote 50} To students of labor history, this writ looks familiar. Injunctions against parading, picketing, boycotting, and the like were the stock-in-trade of the legal suppression of strikes, especially from the 1890s to the 1930s (and even beyond) ^{Footnote 51} —so much so that it came to be known as “government by injunction.” ^{Footnote 52}

It is no surprise that when the U.S. Supreme Court upheld the constitutionality of Martin Luther King’s arrest, in Walker v. Birmingham (1967), the precedent to which they appealed was Howat v. State of Kansas (1922). Howat upheld, among other things, the arrest of radical labor leader Alexander Howat, who was leading a strike against the new industrial court in Kansas. Facing an injunction but expecting no justice from the courts, Howat refused to mount a legal challenge, instead directly disobeying it. He appealed his arrest and eventually lost. Just like Howat, King and his fellow disobedients had purposefully not challenged the Birmingham injunction before violating it. All past experience, including previous attempts by these very same Civil Rights leaders, proved that the courts were uniformly hostile to such challenges against an unjust law. The Supreme Court saw the parallel and decided, on the basis of Howat, that King (and others arrested with him) was lawfully arrested, regardless of the constitutionality of the injunction, because he did not first try to challenge the injunction in court—as if the problem were merely the injunction, and not the judicial system more broadly, from whom they had no reason to expect justice. We owe, then, one of the signature experiences of civil disobedience, as well as the law and jurisprudence that set it in motion, to one of those many exercises in policing labor.

Of course, there is a good reason why this all reads like a distant memory: It is hardly visible today. One of the effects of police repression was that it turned the more conservative elements of the labor movement into managers of labor, eschewing radicalism in favor of legitimacy. ^{Footnote 53} The New Deal granted workers certain rights, but it did so by incorporating the labor movement into the state. While the Left—communists, socialists, anarchists, and radicals—was always subject to direct repression, other labor leaders had the right of collective bargaining and then the task of enforcing these contracts on their own membership. This is one of the most important lessons of Brecher’s gripping but otherwise analytically thin book. It comes out most vividly in the chapters dealing with the wildcat strikes of the 1930s and the postwar strike wave. The author notes that it was not just the bureaucratization of the official labor movement but the way in which its power derived from the ability to control its members that had such a disciplining effect: “With the help of the government, which created a rigid institutional structure for collective bargaining through the Wagner Act and its National Labor Relations Board,” writes Brecher, “the CIO [Congress of Industrial Organizations] was able to channel the sit-down movement back into forms of organization far less challenging to the power of the corporate managers” (p. 207).

Over the course of the twentieth century, this political shift gave the labor movement the function of self-policing. Union leaders administered contracts against their membership, rather than, first and foremost, representing their membership against employers. To strike, one increasingly had to go against not just employers and the state but also one’s own leadership. One sad sign of this shift is the return of the injunction. Whereas courts used to impose injunctions on strikers in the past, today they are self-imposed by unions that regularly write no-strike pledges into the contracts they make.