The Supreme Judicial Court of Massachusetts began its answer, in March 1842, by conceding almost everything the prosecution wanted. Yes, the common law of criminal conspiracy was in force in the Commonwealth. Yes, it was an offence for two or more people to combine to do something unlawful. Chief Justice Lemuel Shaw wrote all of that down before he turned it around. It did not follow, he said, that every indictment good in England was good in Massachusetts, and it did not follow that a group of workmen agreeing on terms had done anything at all. “In this state of things, we cannot perceive, that it is criminal for men to agree together to exercise their own acknowledged rights, in such a manner as best to subserve their own interests.” static.case.law
That is the sentence usually quoted, and it deserves to be. It is also narrower than it sounds. Shaw was one state’s judge writing about one indictment. He removed a weapon; he did not hand anyone a right. Nothing in the opinion says what a court may do to a strike by some other route, and for the next ninety years American workers found out.
The clearest evidence of what filled that stretch is not a case. It is a statute Congress passed in 1932, thirteen years before the one everybody remembers. The Norris-LaGuardia Act declared that workers must have “full freedom of association, self-organization, and designation of representatives” and be “free from the interference, restraint, or coercion of employers of labor”—and then, having said so, took away from the federal courts their jurisdiction to issue injunctions in labour disputes. law.cornell.edu A legislature does not spend a statute withdrawing a power the courts were not using. The instrument had changed. Organisers were no longer being indicted as conspirators; their strikes were being enjoined, and an injunction does not require a jury.
Three years later the guarantee arrived in the form it still has. The National Labor Relations Act was signed on 5 July 1935, and its seventh section reads: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” archives.gov
Even then it was provisional for twenty-one months. The Act was not safe until 12 April 1937, when the Supreme Court upheld it in a case brought over ten sacked steelworkers in Aliquippa, Pennsylvania. Chief Justice Hughes, having quoted the same section, added five words that had been unavailable to anyone standing in a Philadelphia courtroom in 1806: “That is a fundamental right.” static.case.law
There is another history of the first unions, and this piece is not it. In 1824 Parliament passed “An Act to repeal the Laws relative to the Combination of Workmen”—the long title is the whole story—and within a year replaced it with a second Act on narrower terms. legislation.gov.uk legislation.gov.uk The Trade Union Act 1871 followed. legislation.gov.uk That is a legislature repealing its own criminal statutes, twice, and then writing a settlement. The American version is a doctrine dismantled by a state court, replaced by a remedy the same courts invented, and only ended by Congress a century after the trouble started. Two roads, two sets of dates, and a deck that ran them together would be describing neither country.
Comment
The Question the Statute Leaves
Read on past Section 7 and the Act defines what bargaining collectively actually obliges anyone to do. The parties have to meet at reasonable times and confer in good faith over wages, hours and conditions. Then the same subsection says the duty stops there: neither side has to accept what the other proposes, and neither side has to give anything up. law.cornell.edu A company that turns up, listens and offers nothing has complied.
That is not a loophole somebody found later. It is in the text, and it is the reason the 1935 guarantee and a signed agreement are two different things that arrive at two different times, if the second one arrives. The files on this desk keep stopping in the same place. Workers at ZeniMax formed their union in January 2023 with the parent company standing aside, which is the easiest conditions anyone gets, and the first contract was ratified in June 2025. gamedeveloper.com Two and a half years, with nobody fighting.
So the question that survives the anniversary is a plain one. The eight men fined in Philadelphia lost a case about whether they could combine at all. That fight is finished and they won it, posthumously, twice over. What replaced it is a fight about whether combining produces anything, and the statute that settled the first question was written so as not to settle the second. A right to ask is not nothing. It is also not the thing most people think they are voting for.