In re Debs and the 1894 Pullman Strike That Made the Labor Injunction

Here is a puzzle for the conservative who loves law and order. A federal court issues a sweeping order, with no jury and no statute that mentions the conduct, and puts the leader of a national union in jail for contempt. The Supreme Court says nine to nothing that this is fine. Is that a victory for the rule of law or a warning about it?

The answer is both, and the case is In re Debs, decided in 1895. It is a story about a train strike, a railroad lawyer who became Attorney General, and the habit of power to grow whenever it is handed an emergency. Conservatives should know it cold, because the lesson cuts in every direction and it does not care who holds the office.

The facts before the strike

George Pullman built sleeping cars, and he built a company town to go with them, Pullman, Illinois, just south of Chicago. The Pullman Palace Car Company owned the houses, the shops, the church and the library. Its workers rented from the company and bought from the company.

Then came the Panic of 1893, a deep depression. Pullman cut wages, and the cuts were large. He did not cut the rents the workers paid to the company for their houses. A worker could take home a paycheck that, after rent, was close to nothing. In May 1894 the workers struck.

The strikers were members of the American Railway Union, which Eugene V. Debs had founded in 1893. The ARU was an industrial union, one for all railway workers rather than for each craft, and it was young and fast-growing. In June 1894 the union responded with a boycott. Beginning June 26, ARU members would refuse to handle any train that carried a Pullman car. The railroads had a standard answer: they fired anyone who refused.

The boycott spread across the western and midwestern lines. Trains stopped. Freight sat in yards. It was the largest labor dispute the country had yet seen.

Why it matters here: the boycott was aimed at the railroads' use of Pullman cars, not at the mail. But the railroads, to keep the mail moving, attached mail cars to trains that carried Pullman cars, and that connection became the legal hook.

The government's theory

The railroads' managers organized as the General Managers' Association and looked to Washington. The Attorney General was Richard Olney, a lawyer with close ties to the railroad industry who regarded the boycott as a threat to the government. Olney's plan was to have the government go to court.

He had two legal theories, and it is the pairing of the two that makes the case so instructive.

1. The mails. The Constitution gives Congress the power "To establish Post Offices and post Roads" (Article I, Section 8, Clause 7). Congress had made it a crime to obstruct the passage of the mail. A strike that stopped trains carrying mail cars, Olney said, obstructed the mail.
2. Interstate commerce. The Constitution gives Congress power "To regulate Commerce with foreign Nations, and among the several States" (Article I, Section 8, Clause 3). The Sherman Antitrust Act of 1890 declared illegal any "combination... in restraint of trade or commerce among the several States." A union boycott that halted interstate rail traffic, Olney argued, was such a restraint.

In early July 1894 the federal circuit court in Chicago issued a broad injunction. It forbade Debs and the other ARU leaders from doing, or encouraging anyone else to do, anything that obstructed the railroads or the mail. The order covered not only the strikers but, by its terms, anyone who induced or persuaded workers to quit.

Early that July President Grover Cleveland sent federal troops into Chicago. Illinois Governor John Peter Altgeld, a Democrat like the President, protested that the state could keep order and that the federal government had no right to send soldiers without his request. Cleveland went ahead anyway. There was violence in the rail yards in the days that followed. Debs and other leaders were arrested for contempt of the injunction. By mid-July the strike had collapsed.

Here is a detail that deserves notice. In that same year, 1894, Congress made Labor Day a federal holiday. History is not tidy.

The question

Debs was convicted of contempt by the judge who had issued the order, with no jury, and sentenced to six months in jail. Their lawyers, including the young Clarence Darrow and the former Senator Lyman Trumbull, sought a writ of habeas corpus from the Supreme Court.

The question was not whether the strike was wise. It was this: did a federal court have the power to enjoin the strike at all, in the absence of any statute that clearly authorized it, and could it punish disobedience by summary contempt, without a jury?

The argument against the government was strong. The Constitution guarantees jury trial in criminal cases (Article III, Section 2, and the Sixth Amendment). Contempt was a crime, the defendants said, and a judge who made up an order and then jailed men for violating it, without a jury, was legislator, prosecutor and judge at once. And the government had gone to a court of equity, which usually protects property rights against threatened injury, to stop a labor dispute that involved no property of the government at all.

The holding

In 1895 the Supreme Court decided In re Debs, 158 U.S. 564. The vote was unanimous. Justice David Brewer wrote the opinion.

Brewer's reasoning had three steps.

First, the national government has power over interstate commerce and the mail. Those powers are real and are given to the nation, not the states.

Second, a government with a power may protect it. Brewer wrote that "the strong arm of the national government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails." The government did not need a statute that spelled out an injunction. It could go to a court of equity and ask for one, as any owner could do to stop an obstruction of its property or its highways.

Third, the contempt power. Brewer held that a court of equity could enforce its own order by punishing disobedience, and that the contempt was not an ordinary crime requiring a jury. The Court said that the habeas corpus petition was not the place to review the decision of the lower court, since that court had jurisdiction.

The Court notably did not rest on the Sherman Act. It said it was unnecessary to decide whether the strike violated that statute. It chose the ground of the government's inherent power to protect commerce and the mails. That is significant. The theory with a statutory text was the one the Court set down, and the theory with the broader sweep was the one it adopted.

Why it mattered: Debs gave the executive a tool that the Constitution never mentions. When the government wanted to end a strike of national scope, it could get a judge to forbid it and then use the contempt power to jail the leaders. For the next several decades the "labor injunction" was the weapon of choice against strikes, and the judge, not a jury, decided who had defied it.

The steelman

Let us state the government's best case fairly, because it is not a silly one.

The Founders gave Congress power over the post and interstate commerce so that the nation could have a single national market and a reliable mail. A strike that shut down the railroads in a dozen states was not a local matter. If the national government could not act to keep trains running, then its powers were a dead letter whenever a large enough group decided to stop them. There is a principle of self-preservation in any government, and the Court in 1895 was applying it. Brewer's opinion also took care to say that the government's case rested on obstruction, not on the fact of the strike. The right to quit work was not at issue. The right to block a national highway was.

That is a respectable argument, and many conservatives have found it persuasive. Public order is a first duty of government, and a republic that cannot protect its own commerce will not survive. I do not wave it away.

The answer

Now the rebuttal, in numbered points.

1. A power to protect is not a power to invent. The Constitution gives Congress the legislative power. Article I, Section 1 begins: "All legislative Powers herein granted shall be vested in a Congress of the United States." If obstruction of interstate commerce was to be prohibited by an order enforceable with prison, it was for Congress to say so in a statute, with notice to the public. In 1895 a judge, acting on a request from the Attorney General, supplied the prohibition himself. That is what the framers feared when they separated lawmaking from judging.
2. Summary contempt is a thin substitute for a jury. The Sixth Amendment promises "the right to a speedy and public trial, by an impartial jury." A man sent to prison for six months by the very judge whose order he was accused of violating got neither impartiality nor a jury. The ruling that a judge may decide contempt without a jury leaves a defendant to the mercy of the very court that issued the order.
3. The reasoning had no limiting principle. If the government may enjoin any act that obstructs a national power, then the question becomes how much obstruction, by whom and for what reason, and the answer is whatever the court finds. The line between a protected strike and an unlawful obstruction was drawn by the judge case by case.
4. The case invited the use of equity against speech and assembly. The 1894 order reached anyone who persuaded workers to join the boycott. Persuasion is speech. An order that forbids it deserves the First Amendment's attention, and the Court did not give it any.
5. The remedy came from the wrong place, and the right place finally acted. A generation later Congress did what a legislature should: it wrote a statute. The Norris-LaGuardia Act of 1932 limited the power of federal courts to issue injunctions in labor disputes, barred the enforcement of "yellow-dog" contracts, which made a worker promise not to join a union, and said the national policy was to protect workers' freedom of association. The people's representatives corrected the courts through the ordinary lawmaking process, the way the Constitution intends. For how Congress can set the boundaries of federal courts, see The Exceptions Clause Gives Congress a Power Over the Courts It Rarely Uses.

What followed for Debs and for the country

Debs served his six months in the jail at Woodstock, Illinois. He later became the Socialist Party's candidate, and he ran for President five times between 1900 and 1920, the last time from a federal prison cell, where he had been sent for opposing the First World War. I disagree with almost all of his politics. I will say plainly that he never advocated violence at Pullman and that the trial court's order reached people for their words.

The injunction, meanwhile, became a standard feature of American labor law until the 1930s. It was the instrument that employers asked for, and the courts gave it freely. Many Americans came to regard the federal bench as a partisan of capital. The remedy that followed, the Norris-LaGuardia Act and later the wider legislation of the New Deal, swung the pendulum the other way. Each swing was a reaction to the last.

What the episode teaches about emergency power

Here is the lesson I most want conservatives to take from 1894, and I mean it as a lesson, not a lecture.

Emergency power is a tool with no owner. In 1894 the Cleveland administration, with the cooperation of the federal bench, used it against a union. The precedent that supported that use did not stay put. A principle that says the national government may do what is needed to protect its functions from obstruction is as available to a government of the Left as of the Right. A broad theory of inherent executive power is delightful when your own side is in charge and a nightmare the day after the election.

Consider the shape of the argument. Every grab of power in American history has come with an emergency: a rail strike, a war, a depression, a pandemic. The question to ask each time is the one the Constitution asks. Which branch has the authority, under what text, and with what check? In 1895 the answer was a court acting on an executive request with no clear statute and no jury, and I think that was wrong in its reasoning even if the government's goal of keeping the trains and the mail moving was sound.

It is worth comparing this with the best-known cases of deference in a crisis. The Court's later failure in Korematsu, treated at Korematsu Was Finally Repudiated in 2018, and Its Lesson Is About Deference, is a more painful example of the same habit. And the disputes about the Court's own use of equity in our time, including the fight over universal injunctions in Universal Injunctions Barely Existed Before 1963, So Where Did They Come From, show that the question of what judges may order never goes away.

The Founding yardstick

Measure the case against the Declaration. Among the complaints against King George III was that he had "affected to render the Military independent of and superior to the Civil Power" and that he had deprived the colonists "in many cases, of the benefits of Trial by Jury." Those are exact words from the list of grievances. In 1894 the President sent regular troops against an American strike, over the protest of a governor, and a federal court tried the union's leaders without a jury. I do not say the two situations are the same. I say the Founders had a reason for each of those complaints, and a citizen who reads them should wince.

Both sides of the lesson

I will not pretend that the opposite lesson is wrong. Some strikes do paralyze the nation, and a government has a duty to keep the mails running. The point is not that government may never act. The point is how it acts: through statutes written by the legislature, tried before juries where the Constitution requires them, and reviewed by courts that remember they are not legislators. The case for acting lawfully in an emergency is stronger than the case for acting fast, because a republic has to survive the precedents it sets in hard times. See Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not on the limits of what courts can claim.

The case in brief

1. The Pullman Strike and boycott of 1894 halted rail traffic across much of the country, and the government answered with an injunction, federal troops and arrests.
2. In In re Debs (1895) a unanimous Court upheld the injunction and the contempt sentence on the theory that the nation may protect interstate commerce and the mail, without relying on the Sherman Act.
3. The holding placed lawmaking in the hands of judges and denied a jury trial for contempt, both in tension with Article I, Section 1 and the Sixth Amendment.
4. Congress eventually corrected the problem with the Norris-LaGuardia Act of 1932, which is how the Constitution wants such disputes settled.
5. The lasting lesson for conservatives is that emergency power has no owner, and a principle you applaud in friendly hands will serve your opponents tomorrow.

What you can do: read the text of the Norris-LaGuardia Act on Congress.gov and ask your own representative one question, whether Congress or the courts should be making the rules for emergencies.