The Constitution of the United States of America: Analysis and Interpretation Part 191

[122] Hamilton _v._ University of California, 293 U.S. 245, 262 (1934).

_See also_ p. 768.

[123] 16 Wall. 36 (1873).

[124] 165 U.S. 578, 589.--Herein liberty of contract was defined as follows: "The liberty mentioned in that [Fourteenth] Amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned."

[125] 236 U.S. 1, 14 (1915).

[126] Chicago, B. & Q.R. Co. _v._ McGuire, 219 U.S. 549, 567, 570 (1911); Wolff Packing Co. _v._ Court of Industrial Relations, 262 U.S.

522, 534 (1923).

[127] Holden _v._ Hardy, 169 U.S. 366 (1898).

[128] Miller _v._ Wilson, 236 U.S. 373 (1915); Bosley _v._ McLaughlin, 236 U.S. 385 (1915). _See also_ Muller _v._ Oregon, 208 U.S. 412 (1908); Riley _v._ Ma.s.sachusetts, 232 U.S. 671 (1914); Hawley _v._ Walker, 232 U.S. 718 (1914).

[129] Bunting _v._ Oregon, 243 U.S. 426 (1917).

[130] Atkin _v._ Kansas, 191 U.S. 207 (1903).

[131] Consolidated Coal Co. _v._ Illinois, 185 U.S. 203 (1902).

[132] Wilmington Star Min. Co. _v._ Fulton, 205 U.S. 60 (1907).

[133] Barrett _v._ Indiana, 299 U.S. 26 (1913).

[134] Plymouth Coal Co. _v._ Pennsylvania, 232 U.S. 531 (1914).

[135] Booth _v._ Indiana, 237 U.S. 391 (1915).

[136] Sturges & B. Mfg. Co. _v._ Beauchamp, 231 U.S. 320 (1914).

[137] Knoxville Iron Co. _v._ Harbison, 183 U.S. 13 (1901); Dayton Coal & I. Co. _v._ Barton, 183 U.S. 23 (1901); Keokee Consol. c.o.ke Co. _v._ Taylor, 234 U.S. 224 (1914).

[138] Erie R. Co. _v._ Williams, 233 U.S. 685 (1914).

[139] St. Louis, I.M. & S.R. Co. _v._ Paul, 173 U.S. 404 (1899).

[140] Rail & River Coal Co. _v._ Yaple, 236 U.S. 338 (1915). _See also_ McClean _v._ Arkansas, 211 U.S. 539 (1909).

[141] West Coast Hotel Co. _v._ Parrish, 300 U.S. 379 (1937), overruling Adkins _v._ Children's Hospital, 261 U.S. 255 (1923) (a Fifth Amendment case); Morehead _v._ New York ex rel. Tipaldo, 298 U.S. 587 (1936).

[142] Day-Brite Lighting, Inc. _v._ Missouri, 342 U.S. 421, 423 (1952).

[143] Ibid., 424-425.

[144] New York C.R. Co. _v._ White, 243 U.S. 188, 200 (1917).

[145] Arizona Copper Co. _v._ Hammer (Arizona Employers' Liability Cases), 250 U.S. 400, 419-420 (1919).

[146] In determining what occupations may be brought under the designation of "hazardous," the legislature may carry the idea to the "vanis.h.i.+ng point."--Ward & Gow _v._ Krinsky, 259 U.S. 503, 520 (1922).

[147] New York C.R. _v._ White, 243 U.S. 188 (1917); Mountain Timber Co.

_v._ Was.h.i.+ngton, 243 U.S. 219 (1917).

[148] Arizona Copper Co. _v._ Hammer (Arizona Employers' Liability Cases), 250 U.S. 400, 419-420 (1919).

[149] Hawkins _v._ Bleakly, 243 U.S. 210 (1917).

[150] Chicago, B. & Q.R. Co. _v._ McGuire, 219 U.S. 549 (1911).

[151] Alaska Packers a.s.so. _v._ Industrial Commission, 294 U.S. 532 (1935).

[152] Thornton _v._ Duffy, 254 U.S. 361 (1920).

[153] Booth Fisheries Co. _v._ Industrial Commission, 271 U.S. 208 (1920).

[154] Staten Island R.T.R. Co. _v._ Phoenix Indemnity Co., 281 U.S. 98 (1930).

[155] Sheehan Co. _v._ Shuler, 265 U.S. 371 (1924); New York State R.

Co. _v._ Shuler, 265 U.S. 379 (1924).

[156] New York C.R. Co. _v._ Bianc, 250 U.S. 596 (1919).--Attorneys are not deprived of property or their liberty of contract by restriction imposed by the State on the fees which they may charge in cases arising under the workmen's compensation law.--Yeiser _v._ Dysart, 267 U.S. 540 (1925).

[157] Justice Black in Lincoln Union _v._ Northwestern Co., 335 U.S.

525, 535 (1949). _See also_ pp. 141, 977-979, 985.

In his concurring opinion, contained in the companion case of American Federation of Labor _v._ American Sash Co., 335 U.S. 538, 543-544 (1949), Justice Frankfurter summarized as follows the now obsolete doctrines employed by the Court to strike down State laws fostering unionization. "* * * unionization encountered the s.h.i.+bboleths of a premachine age and these were reflected in juridical a.s.sumptions that survived the facts on which they were based. Adam Smith was treated as though his generalizations had been imparted to him on Sinai and not as a thinker who addressed himself to the elimination of restrictions which had become fetters upon initiative and enterprise in his day. Basic human rights expressed by the const.i.tutional conception of 'liberty'

were equated with theories of _laissez faire_. The result was that economic views of confined validity were treated by lawyers and judges as though the Framers had enshrined them in the Const.i.tution. * * * The att.i.tude which regarded any legislative encroachment upon the existing economic order as infected with unconst.i.tutionality led to disrespect for legislative attempts to strengthen the wage-earners' bargaining power. With that att.i.tude as a premise, Adair _v._ United States, 208 U.S. 161 (1908), and Coppage _v._ Kansas, 236 U.S. 1 (1915), followed logically enough; not even Truax _v._ Corrigan, 257 U.S. 312 (1921), could be considered unexpected."

On grounds of unconst.i.tutional impairment of freedom of contract, or more particularly, of the unrestricted right of the employer to hire and fire, a federal and a State statute attempting to outlaw "yellow dog"

contracts whereby, as a condition of obtaining employment, a worker had to agree not to join or to remain a member of a union, were voided in Adair _v._ United States and Coppage _v._ Kansas, respectively. In Truax _v._ Corrigan, a majority of the Court held that an Arizona statute which operated, in effect, to make remediless [by forbidding the use of injunction] injury to an employer's business by striking employees and others, through concerted action in picketing, displaying banners advertising the strike, denouncing the employer as unfair to union labor, appealing to customers to withdraw their patronage, and circulating handbills containing abusive and libelous charges against employers, employees, and patrons, and intimidations of injury to future patrons, deprives the owner of the business and the premises of his property without due process of law.

In Wolff Packing Co. _v._ Industrial Court, 262 U.S. 522 (1923); 267 U.S. 552 (1925) and in Dorchy _v._ Kansas, 264 U.S. 286 (1924), the Court had also ruled that a statute compelling employers and employees to submit their controversies over wages and hours of labor to State arbitration was unconst.i.tutional as part of a system compelling employers and employees to continue in business on terms not of their own making.

[158] 301 U.S. 468 (1937).

[159] Prudential Ins. Co. _v._ Cheek, 259 U.S. 530 (1922). In conjunction with its approval of this statute, the Court also sanctioned judicial enforcement by a State court of a local rule of policy which rendered illegal an agreement of several insurance companies having a monopoly of a line of business in a city that none would employ within two years any man who had been discharged from, or left, the service of any of the others.

[160] Chicago, R.I. & P.R. Co. _v._ Perry, 259 U.S. 548 (1922).

[161] Dorchy _v._ Kansas, 272 U.S. 306 (1926).

[162] 301 U.S. 468, 479 (1937).

[163] _See_ p. 1141.

[164] Cases disposing of the contention that restraints on picketing amount to a denial of freedom of speech and const.i.tute therefore a deprivation of liberty without due process of law have been set forth under Amendment I.

[165] 326 U.S. 88 (1945).