This essay tells the story of the development of two of the most significant and controversial entitlement programs in twentieth-century U.S. history—collective bargaining and affirmative action. It focuses on the nexus between them—how New Deal empowerment of labor unions contributed to racial discrimination, and thus fed the Great Society race-based programs of affirmative action. The evolving relationship between the courts and the bureaucracies is emphasized, particularly how the judiciary went from an obstacle to an enabler of the entitlement state.

Though most legal and labor historians have depicted an American labor movement that suffered from legal disabilities, American law has never denied organized labor's freedom of association. Quite the contrary, unions have always enjoyed at least some favoritism in the law, and this status provided the essential element to their success and power. But, even during the heyday of union power (1930–47), organized labor never succeeded in gaining all of the privileges that it sought, not enough to stem its current (...) (private-sector) decline back to historically normal levels. This article provides a synoptic overview and reinterpretation of the development of American labor law. (shrink)