On January 25, 1915, the Supreme Court decided the case of Coppage v. Kansas, allowing employers to force workers to sign yellow-dog contracts, making not joining a union a condition of employment. This case, so typical of the Gilded Age Supreme Court and the Court for the vast majority of American history, caused such outrage that it eventually led to legislation banning yellow-dog contracts.
American elites, going back to before the Civil War, were deeply committed to the idea of liberty of contract. At its essence, this meant that any two people who made an agreement, let’s say for a job, entered into the agreement as autonomous agents who made a legally binding agreement. It did not take long for contract doctrine to be perverted by the nation’s industrial elite in order to repress the rights of workers. The idea that an impoverished worker was on the same legal and moral level as J.P. Morgan is an absolutely absurdity, a mockery of any decent legal standard. But this lasted for many decades. So if an employer wanted to force a worker to sign a yellow-dog contract so that they could not join a union, followers of liberty of contract doctrine would state that said worker could either agree to the conditions or quit. Quit to what was not a question they were concerned with. Poverty, despondence, suicide–these were not worthy of the attention of these elites.
One of the key demands of labor during the early twentieth century was banning the yellow-dog contract. In many states, particularly with strong Populist leanings, they had success at the state level. One of these states was Kansas, where such contracts had been made illegal. But that didn’t mean that the companies would respect the law. It will not surprise you that one industry that ignored the law entirely was the railroads. T.B. Coppage was a superintendent for the St. Louis & San Francisco Railway. In 1911, he fired a worker with the last name of Hedges. Hedges was also a member of the Switchmen’s Union of North America, one of the railroad brotherhoods. Coppage found out about it and told Hedges that he could either leave the union or be fired. Hedges refused to leave his union and so he was fired. The state of Kansas attempted to enforce its law and the railway went to court.
The case slowly wound its way through the courts until it was finally decided in January 1915. But laws banning yellow-dog contracts were doomed in cases against these Supreme Court justices. The groundwork had already been laid in Adair v. U.S. in 1908, when John Marshall Harlan had written “The right of a person to sell his labor upon such terms as he deems proper is the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such.” In other words, the employer and employee were on the same ground. The Court had changed slightly in the preceding seven years, but not that much. The little remembered Mahlon Pitney, a Taft appointee, wrote for the majority in a 6-3 decision. In it, he frankly stated that the government had no role in ensuring that workers had bargaining power:
[It] is said… To be a matter of common knowledge that ’employees, as a rule, are not financially able to be as independent in making contracts for the sale of their labor as are employers in making contracts of purchase thereof.’ No doubt, wherever the right of private property exists, there must and will be inequalities of fortune. [Since] it is self-evident that… some persons must have more property than others, it is… 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.
Oliver Wendell Holmes, William Day, and Charles Evans Hughes were the three dissenters. Holmes’ dissent was basically that these decisions, including Adair and Lochner, were frankly unconstitutional and should be overturned. For him, the Constitution simply did not prohibit laws on working conditions. For Day and Hughes, the dissent was more limited, basically just stating that the law was not an illegitimate exercise of police power.
This was a devastating defeat for the labor movement. Moreover, the Court expanded upon two years later in Hitchman Coal and Coke v. Mitchell, where it decided that yellow-dog contracts were in fact enforceable by law, part of the ever increasing connections between the power of the state and employer power. In the aftermath of World War I, when there was an enormous backlash to the gains unions had made in the 1910s, the yellow-dog contract was an increasingly part of the worker scene. But even in these non-reformist times, there was enough disgust that finally support grew for a federal law that would ban these contracts. That happened with the Norris-LaGuardia Act in 1932. That pioneering law helped lay the groundwork for the greater labor reforms of the 1930s.
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