The Right to Strike

1

IN ALL the discussions, in all or most of the pontifical editorials dealing with labor unrest and strikes, we encounter the familiar phenomenon of a debate carried on in general terms which are wholly undefined. If you and I are discussing Liberty or Democracy or Human Rights, I want to know exactly what those imposing words mean to you. You ought to know what they mean to me. Otherwise the discussion ends in frustration and each of us departs convinced only that he is a sound logician and his opponent an evasive person, if not actually dishonest.

During the last coal strike, Mr. Lewis was on familiar ground when he defended the Right to Strike and inveighed against involuntary labor as servitude and an infringement of essential human rights. The government claimed that the public’s interest was paramount and that the rights involved must be curtailed for the protection of the whole community. Well and good, but obviously we could meet on a more comprehensible level if both of us took the trouble to define exactly what we mean by rights, if we understood what they are, how they came to exist, and what their status is in the involved complexity of modern civilization. For here the gravest confusion exists. Definitions in legal dictionaries are clearly inadequate. The rights involved mean all things to all men — as do the concepts summed up in the words Liberty and Democracy. It is the part of wisdom to know exactly what we are fighting for and about.

At present many attempts are being made by our deepest thinkers to formulate a definition of rights and a codification of the ones thought to be essential to modern society which can be accepted in a worldwide sense. The Annals of the American Academy of Political and Social Science devoted its January, 1946, issue to a symposium dealing with “Essential Human Rights,” discussed under the following headings: “International Importance of Human Rights,” “An International Declaration of Human Rights,” “Human Rights in Selected Areas,” “National Legal Protection of Human Rights,” “International Procedures for Protection of Human Rights,” and “Future International Action.”

The United Nations, among their multifarious activities, enjoy the services of a Commission on Human Rights, charged with the formulation of an International Bill of Human Rights. I have before me the outline of such a bill, prepared by a committee of eminent citizens for presentation to the Commission — a sort of unofficial indication of how a group of the best people think the Commission’s deliberations should eventuate. Of the nineteen articles presented in the outline, the first two establish the international character of the document, the third limits the exercise of rights “by the rights of others and by the just requirements of the democratic state,” and the last one has to do with enforcement. Each of the remaining fifteen articles begins with the words: “Every person has the right” — let us say, to trial by jury, to education, to social security, to “receive from the State assistance in the exercise of his right to work,” and so on.

No one will quarrel with the laudable purposes behind such a document. They are not only benevolent; they evidence a sincere intention to codify a world-wide insistence on the dignit y of the individual. Their formal expression is plausible and a reading of them makes us feel noble and generous as co-workers for a better world. The only trouble with them is that they arc all wrong. They convey a totally erroneous impression. They tell us we are entitled to a blank check on society, that we own something which we do not possess. They arc upside down. They are hindside before. They might have been written in topsyturvydom.

What do these good people mean by the rights they have enumerated in a document which crystallizes confusion and gives it a kind of official sanction ? What are the character and the governing principle of these rights? Are they agreements which have been arrived at in one way or another? Are they permanent or transient? Or are they inherent, “natural rights,” mystical, almost divine, with which every creature is endowed on entering this vale of tears?

A great many people say “Yes” to the third question, and there is respectable authority for such an answer. Our own Declarat ion of Independence st ates as a self-evident truth that all men “are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Further endorsement of this conception may be found in the French Declaration of the Rights of Man and of the Citizen (1789) and in many other enthusiastic and hopeful generalizations.

It is a pleasant and ennobling thought — that God endows each one of us with a ready-made assortment of inalienable rights and justifiable claims against the rest of the world. As a basis for eighteenth century political metaphysics, it is as fascinating an assumption as may be found. But it is an assumption, nothing more nor less, and worth no more than any other improvable hypothesis. Dogmatists may base a system of theology on the assumption that a babe, born or unborn, is the possessor of an immortal soul; and if you grant that assumption, the theology which follows it is unassailable. If you deny that major premise, the logical theology based on it becomes nonsense.

Let us begin by asking whether there is justification, other than a pious hope, for assuming the existence of mystical, inherent, natural, divinely endowed “rights,” and examine briefly the nature and structure of those “rights” whose existence all of us acknowledge in some form.

2

OUR ancestors, in their long and stubborn struggle to conserve their ancient liberties and to expand them, consistently referred to their established “rights and privileges.” We might do well to assume that this phrase describes a likeness and not a difference. We may fairly base our definition of rights on the theory that they were and are privileges, granted to us at one time or another as the result of all kinds of pressures and forces, which — if justified in experience — become embedded for a short time or a long time in our fundamental law as rights. There is nothing sacred or inherent in this conception or definition of rights. They are based on bargains brought about by conditions which were intolerable without regulations and concessions.

Many rights and privileges have been granted which turned out to be valueless or vicious. Le Droit du Seigneur has been relinquished for various reasons. The Divine Right of Kings, the principle of the rightness of autocracy, was at last extinguished to the accompaniment of much suffering and bloodshed. The right to own chattel slaves was a right of incredible antiquity, dating back at least to the beginnings of recorded history. It persisted into modern, enlightened Anglo-Saxon civilization until almost yesterday. It was enshrined in law and statute until only eighty years ago. It was passionately defended by good and honorable men, willing to fight and die to protect its sanctity. Senators and clergymen, in all solemnity, described the “peculiar institution” of slavery as a fundamental right, approved by God and sanctioned by Holy Writ. This right was abolished in our country at the cost of four years of dreadful civil war.

Such instances show that rights come and go: they expand and contract; they are canceled by common consent or as the result of force; they are constantly being abridged by circumstance, or they expand through what seem to be logical accretions. This fact, alone, vitiates their claims as inalienable endowments by Providence.

At this point we may establish Principle No. 1 regarding human rights: They are amendable, transitory, impermanent arrangements. A certain set of conditions produces certain justifiable claims. These claims are admitted by society as valid and are embodied in law and enforced by public opinion. They become accepted as “ rights.” Conditions change and the claims appear to be invalid; the law is amended, and the established “rights” are abridged, modified, or canceled altogether. They are always and forever subject to amendment. I know of no exception whatsoever to this general rule or principle. The only quality of permanence enjoyed by a human right is its impermanence, actual or implicit.

Another general principle characterizes human rights. Consider the foremost claimant among them: the right to life, the right to live. The naked, newborn infant is in no position to make good his claim to this proud privilege. If left alone for a few hours, he dies, and his little soul, immortal or not, his little puff of energy, flutters away — to what end or purpose we do not know. Someone, therefore, assumes the obligation of keeping him alive. Someone pays the bills which his existence entails. Someone or some people fight and pay for his food, his health, his training, his clothing, his education. In other words people pay for the right to keep children alive. If this right were not paid for, it would cease to be.

Society has not always granted even this right. In a community living always on the edge of starvation, public opinion has justified the “exposure” of infants, particularly of infant girls. The right to bear and bring up children was, under those conditions, sharply curtailed. On the other hand, in more prosperous communities the rights of parenthood are forever expanding. Parents nowadays demand as a right that, when they are unable themselves to provide proper facilities, the public shall give vacations and prenatal care to expectant mothers; that babies shall be delivered in free hospitals, their health attended to by physicians and nurses supported at public expense, their education assured by a system of free schools, and so on. These increased rights are acquiesced in by the public as in line with enlightened public policy, but let no one assume that they are inherent rights. They are privileges, granted by the public and paid for by the public because the public believes it is well to make such payment for the public good and the future of mankind.

Here we may formulate the second universal characteristic of all human rights: Principle No. 2, Someone always pays for them. They are not inherent; they are bought and paid for, by someone, somewhere, sometime. Always! To buy a right — that is, to establish its valid claim — may require payment in the form of a war or a revolution. It may have been decided ages ago, but if so, it was at the expense and sacrifice of somebody or some group. And, because of such sacrifice, as Clough wrote: —

The right to own private property is an ancient right, but it took thousands of years — and how many lives! — to establish that right and make it good. It is not clear-cut today. There are barbarous tribes which still own all things in common. The communists would revert to that primitive practice and establish the title of the state to all property — at the expense of everyone who owns private property. Even under capitalism the right to own property is subject to many qualifications. Every measure of taxation is an int erference by the state in the perfection of private ownership. The state says, “ We shall have to take so much of your property every year to pay for implementing the rights of other people. This is not only good business for them, but for all of us, you included.” How fairly and honorably this is done depends on the character of the state, which, in theory, is you. The right of eminent domain is a direct denial of private property rights whenever the interests of the people as a whole seem to be involved. In that case, you are the Forgotten Man, but your predicament will serve to remind you that the right of eminent domain is no exception to the rule that, to maintain a right, somebody always pays.

If the “general relativity of rights” is demonstrated by their amcndability and by the payment principle, which I have called Principles No. 1 and 2, it is further illustrated by Principle No. 3: In all rights, the individual is nothing, the public everything. Apparent inconsistencies with this rule will not bear the light of analysis and examination. This, in itself, would seem to invalidate the mystical endowment theory and, in fact, does so. As an individual you have no right or claim to anything. This is where our Bills of Rights become documents of confusion. Let us say you claim the right to a free education. You are utterly wrong. The world does not owe you an education or a living — contrary to the assumption which is gaining considerable acceptance in this country today. The public assumes that its future condition will be happier if you are literate than if you are not. Therefore it consents to pay the bills for your education. If the net result — as our Army tests indicate — is disappointing, the fault lies in the nature of the education provided or the human material involved, or both, not with the genial willingness of the public to provide you gratis with what you blithely assume to be your due, to throw away, ignore, or maltreat as you choose. Your descendants may safely assume that, if free education is ever admitted to be a complete failure, the right to it will vanish into thin air. An inexpedient right, or one whose exercise is contrary to the general welfare, simply ceases to exist. KEEP OUT will be placarded on Public School No. 3, and little Willy will turn back to the parental jungle for his instruction.

It is therefore with a certain dismay that one reads, not the shoutings of soapbox orators, but the considered thought of eminent, humane, and educated persons on the subject of human rights. Those fifteen articles which I have referred to, beginning “Every person has the right to” — should they not read: “The undersigned governments pledge themselves, as circumstances and the public good permit, to provide” trial by jury, free education, and so on? It is distressing to find eminent people considering human rights as fixed, permanent institutions, to be embalmed in immortal law, as things to which we are naturally entitled, when a slight consideration of their nature shows them to be only agreements, good for a certain time and place — to be fluid, changing agreements, subject to indefinite expansion, subject also to contraction or nullification. It is true that behind them nowadays is a consistent motive, an insistence on the dignity of individual man. That motive may express itself in a thousand gestures on the part of society in the granting of all manner of rights and privileges, but the rights and privileges, themselves, are not fixed and permanent. They have no quality of permanency. They are transient. Aside from a common motive, they share no inherent principles which I have been able to discover except the three referred to above: that they are temporary, that they are always paid for, and that they depend without exception on the “public good.”

3

NEITHER union officials nor executive vice presidents are notorious students of abstract truth. Their concerns are with immediate and specific problems the merits of which I do not propose to discuss. But it is significant, wholly aside from questions of pay or conditions of labor, that both sides base their contentions on an abstract principle which they have not defined: in this instance the Right to Strike and its inevitable corollary, that involuntary labor is servitude.

Therefore the one issue which must be met if there is to be any healthy and reasonable determination of these labor controversies is the valid interpretation of this abstract principle. The public cannot decide whether an 181/2 cents per hour wage raise is desirable or a 191/2 cents per hour raise is undesirable. It is quite unable to pass on the quest ion of how much an industry shall earn or at what price a ton of steel shall be sold to manufacturers. Nor can it always — in moments of emergency — decide on the ethical merits of conflicting claims and positions or determine which party is at fault.

Was the New York tugboat strike of 1946 due to the greed of owners or of workers? Were the cattlemen who withheld beef from the market in 1946 in effect striking against the public for their own private advantages? When bankers elect to withhold credit, are they combining in a strike of capital? The public seldom has all the facts on which to base a decision as to the rights and wrongs of specific instances. On the other hand, public opinion becomes a determining factor when such a controversy clearly involves either the abuse or denial of a human right or the general principles underlying such a right, because it is the public itself which has granted that right in the first place and pays for its maintenance and proper exercise.

Mr. Lewis has, to the thoughtless, ample authority for standing firmly on the inalienable, permanent, ancient, indestructible, inflexible right to strike at any time, anywhere — it being, in the popular mind, generally conceded that enforced labor is servitude. Thomas Jefferson was equally sound when he justified revolution on the basis of certain inalienable, inherent, human rights, bestowed by God. Robert E. Lee, who would probably have freed his slaves gladly, was nevertheless compelled by his conscience to fight for the right to own them. All three were right in their logic. All three were wrong in their assumptions.

Mr. Lewis, to confine the discussion to modern instances, is utterly wrong in the assumption that all men have t he right to strike — to cease their labor — at any time and under all conditions. Such a right simply does not exist. It has never been granted by society. It has been advanced by the lunatic fringe of labor and has been definitely rejected by public opinion. The Boston police strike after World War I provided a clear veto by the public of such extravagance. Policemen — and by tacit assumption firemen, postal employees, and other public servants — cannot be allowed to strike; if soldiers and sailors refuse to labor, their action is called mutiny and is subject to the severest penalties. Nor has the general principle that involuntary labor constitutes servitude been accepted as universal. This country has twice — once in time of war and once in time of professed peace — drafted its young men into the involuntary and disciplined labor of the military services, involving, besides labor, the dreadful prospect of wounds and death. The right to strike is therefore subject to the principle of limitation and amendment.

Mr. Lewis and his colleagues are undoubtedly fully aware of the fact of limitations on the right to strike, although they are reluctant to admit it. But they, like the rest of us, are not clear in their minds as to how far those limitations may extend. Have, for example, 3500 tugboat operators the right to tie up and paralyze the Port of New York, bringing distress to millions? Can 10,000 transit employees be allowed to cut the lifelines of 3,000,000 in Philadelphia, or a smaller group of electricians in the Pittsburgh district to short-circuit the nerve centers of a great community? Can 400,000 coal miners be permitted to plunge a whole country into economic dislocation and consequent misery? How far does the right to strike go, when so many innocent bystanders are involved? Have not too many been asked to pay too much for the benefit of too few? These are the questions which must be answered, and neither management nor labor, arbitration boards nor fact-finding commissions dealing with particular issues, have yet been able to answer them, or to do anything but provide temporary stopgaps and pinchbeck conciliations.

4

BUT, in so far as tho major strikes or threatened strikes of 1946 have been strikes against the public rather than strikes against private ownership and management, they have served indirectly to clarify the general issue. They have created or confirmed the belief that strikes “against the public” which affect the necessities of living are intolerable. The public pays for the right to strike, according to Principle No. 2, but it cannot be asked to pay to the extent of its own great injury or destruction. It will not put private benefit above public good. To ask the public to permit a group of disputants to cut the public’s throat is to approve anarchy as a normal process.

Our common purpose in living and working together is, I suppose, to achieve a kind of civilization which permits a maximum amount of fairness and equality of opportunity, a maximum of compassion toward the handicapped, and a hope of reasonable happiness for all. This is an immensely complex and intricate business; it involves all manner of concessions, of give-and-take; it involves injustices and their rectifications, advantages and disadvantages which must be equalized. It is almost a miracle that it succeeds, here and there, in existing at all. An orderly city street where robbers and murderers dare not tread, where lights shine and houses are heated, where children walk in safety to school, where milkmen deliver milk and postmen deliver mail — this phenomenon, which we take for granted, represents a coördination and coöperation of human effort so widespread, an integration of divergent interests so involved, as to stagger the imagination. It is a condition possible only where private interests are subordinate to the public good.

If certain members of society combine to dim and extinguish those lights; if, as a result of their action, houses are cold, children are at the mercy of the hoodlum and the thug, and enforced unemployment stalks the streets, those members of society have committed a crime against the civilization of which they are themselves a part. They have exercised a right which ceases to be a right and becomes an agent of anarchy.

Not only labor leaders and members of militant unions, not only the writers for PM and the Daily Worker, but all men everywhere, owners of property, white-collar workers, managers of businesses, all of us, must think more clearly before we invoke our particular rights or prate about human rights in general. Let us consider always what the unlimited applications of an individual right may involve before we push our argument to the brutal absurdity of an attack on society in general.

A better method of settling disputes between labor and management in the public services and public utilities and in the vital industries and services, a better solution, must be found than the paralysis of the strike, local or national. It must be found because that method is intolerable and contrary to the public good.

What that method may be is the business of the people through their representatives to determine. The process will be one of trial and error and it will involve much grief, but it must be undertaken by all men of good will. It may be that a pledge of relinquishing the right to strike — in return for proper considerations — will be made a condition precedent to employment in the public utilities. It may be that, as the management of railroads is subject to the rules and regulations of the Interstate Commerce Commission, so the employees of railroads will be made subject to the regulation of an Interstate Labor Commission. It may be that the coal miner who wishes to continue in his hard and dangerous occupation will be told to forgo the luxury of belonging to a national union which can throttle the whole country at the word or the silence of one man. It may be that he will be asked to enlist in an Army of coal miners, pledged to certain services in the public interest and enjoying corresponding privileges. It may be that we shall be forced into public ownership.

But let no man think that in this process of adjustment he is being deprived of an inalienable right. If he is a man who lives by labor, he must accept the limitations on the right to strike which arc now in the process of being determined. If he is an owner of property he must admit the public’s interest in the way he handles and uses that property. In each instance he must be prepared to return to society the full and unlimited exercise of certain privileges which have been granted to him by society, when that full and unlimited exercise becomes harmful to society, of which he is himself a member.

The machinery of the United Nations is hopefully designed to avert warfare between its members. To that end each nation yields a necessary portion of its sovereignty, something of the rights on which it might insist. A similar machinery or its equivalent may well be set up in our own country to avert industrial warfare. If either machine is to function successfully it must be controlled by men too civilized to be wholly selfish, by men who seek something more than their own advancement or a benefit for their class, or race, or nation. They must be men who remember the third and,most important principle governing the exercise of human rights — that the public good is always controlling.

Except as you subscribe to and support this doctrine, except as you admit the “mutuality” of society, you arc not entitled to the exercise of any right of any character whatsoever. The public is not an abstraction. It is everyone, the mass of us trying somehow to build things better in a sorry world. It includes the housewife and the clerk, it includes the farmer and the young mother, it includes John Lewis and the miners of coal, it includes doctor, merchant, lawyer, chief, the student, and the soldier. The rights of each must yield to the public good. And the public is you.