Tuesday, August 30, 2011

Justice Harlan on Union/Employer Rights

Arkes reminds us of something which is important.

Justice John Harlan, the great dissenter in Plessy v. Ferguson on racial segregation, put the argument on unions most clearly in the case of Adair v. U.S. (1908). The anti-slavery movement confirmed that the individual person was the owner of his own labor. He was not obliged to give justifications when he walked away from the employ of any man.

But the employer was no less a natural man than the worker. If a worker wished to join a union, that right was implicit in his standing as a free man. So too was his right to refuse to work at a place that would not confine its hiring only to members of his union. But the employer had precisely the same right to free association, including the right to refuse a relation with a union of that kind, for it barred his own freedom of association, including his freedom to employ people of his own choosing quite willing to work for him.

That these arguments seem to come as news to so many people may simply reflect the fact that our lives have been woven in now with a system of “rights” and franchises and licensing conferred by the laws. And as we become accustomed to them, we may no longer have the same vivid sense of a right to work that finds its moral ground in the natural law.

Worth keeping handy....


Anonymous said...

"But the employer had precisely the same right to free association, including the right to refuse a relation with a union of that kind, for it barred his own freedom of association, including his freedom to employ people of his own choosing quite willing to work for him."

Let's provide some balance and context, shall we?

In Adair v. United States (1908), the Supreme Court upheld "yellow-dog" contracts that forbade workers from joining labor unions. This ruling had reaffirmed the doctrine of freedom of contract, a precedent set in Allgeyer v. Louisiana (1897).
These two cases are part of the Lochner era, a period in which a Supreme Court invalidated legislation aimed at regulating business.

The statute in question in the Adair case was the Erdman Act, which made it criminal for a railroad company to discriminate against or remove workers who freely chose to join a union. Justice Harlan’s majority opinion invalidated that law because 1) it diminished the freedom of contract of both the employer and of the worker, and was thus a violation of the liberty protected against the federal government in the Fifth Amendment, and 2) it could not be brought within the commerce power of Congress because labor unions had no “real or substantial connection” with commerce.

Two justices strenuously objected. They noted the importance of Congress to counter the repeated clashes between management and workers that was the norm in the late 1800’s. In reference to the right of an employer to fire an employee at will, Justice McKenna asked “How can controversies which may seriously interrupt or threaten the business of carriers [railroads] be averted or composed if the carrier can bring on the conflict or prevent its amicable settlement by the exercise of mere whim and caprice?”

That is, this ruling essentially would reduce congressional power to remediate disputes in the best interest of the general welfare. MOST companies employed that tactic at will, as well as letting loose armed goons to bash in the heads of those who dared to interfere with their "right to freedom of contract".

Justice Holmes also commented, "But suppose the only effect really were to tend to bring about the complete unionizing of such railroad laborers as Congress can deal with, I think that object alone would justify the act. I quite agree that the question what and how much good labor unions do is one on which intelligent people may differ--I think that laboring men sometimes attribute to them advantages, as many attribute to combinations of capital disadvantages, that really are due to economic conditions of a far wider and deeper kind--but I could not pronounce it unwarranted if Congress should decide that to foster a strong union was for the best interest not only of the men [meaning individual persons], but of the railroads and the country at large."

Anonymous said...

Both justices also chastised the majority opinion’s insistence that unions had no “real or substantiated connection with commerce”. They explained that work stoppages by INDIVIDUALS in the transportation industry had a direct impact on the movement and flow of goods across state lines.

Therefore, Congress has a duty to prevent strikes [should workers, as individuals, find the yellow dog contracts as a threat to his right to assemble] and the creation of monopolies [in that companies, ALL possessing the same power, could solely dictate terms of employment to benefit them].

So while supposedly Erdman (the law) interfered with freedom of contract--the right of an employer to fire for any reason, the right for a worker to quit for any reason--the Justices concluded that a person “will faithfully perform his duty [his job], whether he be a member or not a member of a labor organization...It is the EMPLOYEE AS A MAN and AND NOT AS A MEMBER OF A LABOR ORGANIZATION who labors in the service of an interstate carrier”. Therefore, Congress has the right to legislate in this circumstance because it is protecting the rights of the NATURAL PERSON.

But perhaps MOST importantly is that each Justice noted how Harlan personalized his legal rationale by focusing on the Adair’s actions of joining a union and not the railroad’s action of firing him. Why? So Harlan could avoid having to consider whether a corporation is a “person” protected by the Due Process Clause.

Remember, the Supreme Court has NEVER determined in ANY case whether a corporation is a natural person afforded constitutional rights similar to people. Only a court reporter in the infamous Santa Clara case (1886) inserted that language into the ruling. So subsequent decisions now firmly rest on that phantom precedent granting companies with rights NEVER intended for them.

Dad29 said...

Good stuff.

And I doubt seriously that Arkes views corporations as 'men' under natural law.

How-some-ever, many small businesses are not incorporated; they're LLPs or partnerships, or sole-ownerships.

Lotsa variables, eh?

Dad29 said...

Lochner, by the way, was correctly decided.