The Supreme Court has decided that no state may forbid an employer to compel a workman to leave the union under penalty of losing his job. This is not a new decision, but the Court repeated its belief in the propriety of the principle and refused to change the law. The result is that it will take the consent of the legislatures of three quarters of all the states in conjunction with Congress to make illegal such a practice. How has such a result arrived? No one supposes that a man may make any contract he pleases, and the court in spite of some archaic language about inalienable rights thought nothing of the kind. Everyone agreed that the right to contract was subject to the police power, whatever that might be. We should not think of it as though it related only to certain subjects, like the public health or safety; that used to be said, but probably it never was the law, and it has long since been exploded if it ever was. At present the police power covers anything which serves the public interest, so far as the courts think the legislature's judgment on the public interest should prevail.
The majority of the court, for the vote was six to three in this case, while agreeing that the legislature might in most cases decide when the public interest required a limitation of the right to contract, thought that this was a case where It might not. The test is, though it has seldom been avowed in quite these terms, whether a fair man could believe that the law as enacted really served any genuine public interest. Between all reasonable differences of opinion the legislature has the right to choose; the court recognizes that it has no general legislative powers; it upsets the doings of the legislature only when it cannot find any conceivable purpose which an honest man could think would serve the public; then it says that the legislature has deprived some person of his liberty without due process of law. Therefore this decision and the previous case necessarily mean that no reasonable man could think it for the general public interest that a workman should not be compelled to leave the union or not to join it at the risk of losing his job.
Now of course the court did not suppose that it would not tend to injure the power of the union if employers actually did this; nor did the court pretend to say that unions did not have their uses; in fact, the justice who wrote the prevailing opinion wanted to be rather nice about unions, so long as they did not interfere with the freedom of contract. His theory was that if you forbade the employer to injure the unions in this way, you took from him some of the economic advantage which he got by his control over capital and his ability to keep the workman out of a job, and that no sensible person could possibly think it was in the public interest to deprive him of that economic power for that purpose.
The words he used were these—they are short: "Unless all things are held in common, some persons must have more property than others, [and] it is from the nature of things impossible to uphold freedom of contract and the right of private property without at the same time recognizing as legitimate those inequalities of fortune that are the necessary result of the exercise of those rights." Therefore a state may not declare "that the public good requires the removal of those inequalities that are but the normal and inevitable result of their exercise."
If the purpose to be accomplished was a true public purpose, it can hardly be an objection that it affects the "normal inequalities of fortune," for every limitation of the right of contract does that, and some limitations are concededly proper. Either, then, the court must suppose that the purposes of a union do not touch the public, or that it is obvious that the union cannot accomplish its purposes. Now it is inconceivable that the court should have thought the purposes of the union do not touch the public, for those purposes include fixing wages under which families may live without progressive degradation, shortening hours which take from life all but its drudgery, preventing unemployment with its constant ghost of pauperism. Nor is it tenable for the court to stop experiments to accomplish these purposes by means of a union. True, men may differ a good deal as to how far unions can permanently affect trade conditions, but the court cannot presume to put an end to all legislation looking towards the protection of unions because they personally believe them certain to be abortive; that would be too obvious an assumption of legislative powers in their traditional sense. If the purpose does concern the public, and if the means are not irrationally inappropriate, there can be no possible justification for the decision except upon the theory that the balance of advantage is too clearly against the law, a conclusion equally fatal to its propriety; such considerations are obviously not for courts under any system.
What, moreover, can be thought of the doctrine that the public good may not require the removal of normal and inevitable inequalities of wealth? Do we have it upon the authority of the court that such inequalities are beyond human help? Has the court so proved the unhappy forecasts of James Mill and Harriet Martineau that we must give up all future experiments in modifying such inequalities? If so, we should greatly profit by a little exegesis; it might save fruitless efforts. Or are we to understand that all inequalities as they exist are after all, normal in the sense of desirable? Surely no judge really thinks that. Are we not finally driven to the conclusion that such decisions come from the prejudices of that economic class to which all the justices belong, and that they are merely unable to shake off the traditions of their education? How else shall we interpret an imagination which has failed to comprehend the hopes and aspirations of hundreds of thousands of living men? How else is it possible to understand such blindness to the beliefs of certainly half the economists of the present time?
The result is bad enough, but the reasons are much worse, and worst of all is the political system which permits either. The "due process" clause of the constitutions can never be other than a means by which courts exercise a legislative function; they pass upon the propriety of what the legislature does, and to do that they must judge by what they think wise and just and necessary. No amount of judicial protestation to the contrary can disguise the facts; the most that courts can do is to exercise the power so rarely and in such obviously unjust eases that there will be no difference of opinion. Such cases very seldom arise, for legislatures always represent in these matters some substantial hody of genuine public opinion. The possible uses at best are trifling compared with the evils which come from decisions like these; it would be a great gain to take out of all constitutions such provisions as the Fifth and Fourteenth Amendments. No state can safely risk the creation of that impotent rage which will come to great numbers of men from a declaration that the law will not permit any legislation which affects the inequalities of economic power. It seems to them to impose from without a system in which they not only now have no part, but in which they can never share in the future, some huge mechanism embodying ideas which they do not understand, and assumptions which, if they only knew it, are long dead. What welcome can they give to the favorite conservative dogma that the judges never make the law, with such instances before them? What answer should they give? What is the fatuity of a system which grants such powers to men who it insists shall be independent of all popular control!
These are balmy days of reaction and the skies look fair, but weather is proverbially uncertain. If courts are to have legislative powers, either they must abdicate their exercise except on rare visitations and in neutral matters, or they must consent to submit to a popular control which they rightly enough resent. One or the other is a condition of democracy; it is a condition of anything but ceremonial dancing before the ark of the covenant.
Three justices dissented, among whom Justice Holmes especially stood out. He puts his wine in a tiny cup, but for that we taste it the better. A great scholar, a far-sighted statesman, the keenest intellect of the long robe, we should honor him while we have him, or the future will curse our blindness.
Learned Hand was the Chief Judge on the United States Court of Appeals for the Second Circuit.