Adair v. United States, 208 U.S. 161 (1908)

Author: Justice McKenna

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Adair v. United States, 208 U.S. 161 (1908)

MR. JUSTICE McKENNA, dissenting.

The opinion of the court proceeds upon somewhat narrow lines, and either omits or does not give adequate prominence to the considerations which, I think, are determinative of the questions in the case. The principle upon which the opinion is grounded is, as I understand it, that a labor organization has no legal or logical connection with interstate commerce, and that the fitness of an employee has no dependence or relation with his membership in such organization. It is hence concluded that to restrain his discharge merely on account of such membership is an invasion of the liberty of the carrier guaranteed by the Fifth Amendment of the Constitution of the United States. The conclusion is irresistible if the propositions from which it is deduced may be viewed as abstractly as the opinion views them. May they be so viewed?

A summary of the act is necessary to understand § 10. Detach that section from the other provisions of the act, and it might be open to condemnation.

The first section of the act designates the carriers to whom it shall apply. The second section makes it the duty of the Chairman of the Interstate Commerce Commission and the Commissioner of Labor, in case of a dispute between carriers and their employees which threatens to interrupt the business of the carriers, to put themselves in communication with the parties to the controversy and use efforts to "mediation and conciliation." If the efforts fail, then § 3 provides for the appointment of a board of arbitration -- one to be named by the carrier, one by the labor organization to which the employees belong, and the two thus chosen shall select a third.

There is a provision that, if the employees belong to different organizations, they shall concur in the selection of the arbitrator. The board is to give hearings; power is invested in the board to summon witnesses, and provision is made for filing the award in the clerk’s office of the Circuit Court of the United States for the district where the controversy arose. Other sections complete the scheme of arbitration thus outlined, and make, as far as possible, the proceedings of the arbitrators judicial, and, pending them, put restrictions on the parties and damages for violation of the restrictions.

Even from this meager outline may be perceived the justification and force of § 10. It prohibits discrimination by a carrier engaged in interstate commerce in the employment under the circumstances hereafter mentioned or the discharge from employment of members of labor organizations "because of such membership." This the opinion condemns. The actions prohibited, it is asserted, are part of the liberty of a carrier protected by the Constitution of the United States from limitation or regulation. I may observe that the declaration is clear and unembarrassed by any material benefit to the carrier from its exercise. It may be exercised with reason or without reason, though the business of the carrier is of public concern. This, then, is the contention, and I bring its elements into bold relief to submit against them what I deem to be stronger considerations, based on the statute and sustained by authority.

I take for granted that the expressions of the opinion of the court, which seem to indicate that the provisions of § 10 are illegal because their violation is made criminal, are used only for description and incidental emphasis, and not as the essential ground of the objections to those provisions.

I may assume at the outset that the liberty guaranteed by the Fifth Amendment is not a liberty free from all restraints and limitations, and this must be so or government could not be beneficially exercised in many cases. Therefore, in judging of any legislation which imposes restraints or limitations, the inquiry must be, what is their purpose and is the purpose within one of the powers of government? Applying this principle immediately to the present case without beating about in the abstract, the inquiry must be whether § 10 of the act of Congress has relation to the purpose which induced the act and which it was enacted to accomplish, and whether such purpose is in aid of interstate commerce, and not a mere restriction upon the liberty of carriers to employ whom they please, or to have business relations with whom they please. In the inquiry, there is necessarily involved a definition of interstate commerce and of what is a regulation of it. As to the first, I may concur with the opinion; as to the second, an immediate and guiding light is afforded by the Employers’ Liability Cases, recently decided, 207 U.S. 463. In those cases, there was a searching scrutiny of the powers of Congress, and it was held to be competent to establish a new rule of liability of the carrier to his employees -- in a word, competent to regulate the relation of master and servant, a relation apparently remote from commerce and one which was earnestly urged by the railroad to be remote from commerce. To the contention, the court said:

But we may not test the power of Congress to regulate commerce solely by abstractly considering the broad subject to which a regulation relates, irrespective of whether the regulation in question is one of interstate commerce. On the contrary, the test of power is not merely the matter regulated, but whether the regulation is directly one of interstate commerce or is embraced within the grant conferred on Congress to use all lawful means necessary and appropriate to the execution of that power to regulate commerce.

In other words, that the power is not confined to a regulation of the mere movement of goods or persons.

And there are other examples in our decisions -- examples, too, of liberty of contract and liberty of forming business relations (made conspicuous as grounds of decision in the present case) -- which were compelled to give way to the power of Congress. Northern Securities Company v. United States, 193 U.S. 197. In that case, exactly the same definitions were made as made here, and the same contentions were pressed as are pressed here. The Northern Securities Company was not a railroad company. Its corporate powers were limited to buying, selling and holding stock, bonds and other securities, and, it was contended that, as such business was not commerce at all, it could not be within the power of Congress to regulate. The contention was not yielded to, though it had the support of members of this court. Asserting the application of the Anti-Trust Act of 1890 to such business and the power of Congress to regulate it, the court said

that a sound construction of the Constitution allows to Congress a large discretion "with respect to the means by which the powers it [the commerce clause] confers are to be carried into execution, which enables that body to perform the high duties assigned to it, in the manner most beneficial to the people."

It was in recognition of this principle that it was declared in United States v. Joint Traffic Association, 171 U.S. 571:

The prohibition of such contracts [contracts fixing rates] may, in the judgment of Congress, be one of the reasonable necessities of proper regulation of commerce, and Congress is the judge of such necessity and propriety unless, in case of a possible gross perversion of the principle, the courts might be applied to for relief.

The contentions of the parties in the case invoked the declaration. There, as here, an opposition was asserted between the liberty of the railroads to contract with one another and the power of Congress to regulate commerce. That power was pronounced paramount, and it was not perceived, as it seems to be perceived now, that it was subordinate and controlled by the provisions of the Fifth Amendment. Nor was the relation of the power of Congress to that amendment overlooked. It was commented upon and reconciled. And there is nothing whatever in Gibbons v. Ogden, 9 Wheat. 1, or in Lottery Case, 188 U.S. 321, which is to the contrary.

From these considerations, we may pass to an inspection of the statute of which § 10 is a part, and inquire as to its purpose and if the means which it employs has relation to that purpose and to interstate commerce. The provisions of the act are explicit, and present a well coordinated plan for the settlement of disputes between carriers and their employees by bringing the disputes to arbitration and accommodation, and thereby prevent strikes and the public disorder and derangement of business that may be consequent upon them. I submit no worthier purpose can engage legislative attention or be the object of legislative action, and, it might be urged, to attain which the congressional judgment of means should not be brought under a rigid limitation and condemned, if it contribute in any degree to the end, as a "gross perversion of the principle" of regulation, the condition which, it was said in United States v. Joint Traffic Association, supra, might justify an appeal to the courts.

We are told that labor associations are to be commended. May not then Congress recognize their existence; yes, and recognize their power as conditions to be counted with in framing its legislation? Of what use would it be to attempt to bring bodies of men to agreement and compromise of controversies if you put out of view the influences which move them or the fellowship which binds them -- maybe controls and impels them -- whether rightfully or wrongfully, to make the cause of one the cause of all? And this practical wisdom Congress observed -- observed, I may say, not in speculation of uncertain provision of evils, but in experience of evils -- an experience which approached to the dimensions of a National calamity. The facts of history should not be overlooked, nor the course of legislation. The act involved in the present case was preceded by one enacted in 1888 of similar purport. 25 Stat. 501, c. 1063. That act did not recognize labor associations, or distinguish between the members of such associations and the other employees of carriers. It failed in its purpose, whether from defect in its provisions or other cause, we may only conjecture. At any rate, it did not avert the strike at Chicago in 1894. Investigation followed, and, as a result of it, the act of 1898 was finally passed. Presumably its provisions and remedy were addressed to the mischief which the act of 1888 failed to reach or avert. It was the judgment of Congress that the scheme of arbitration might be helped by engaging in it the labor associations. Those associations unified bodies of employees in every department of the carriers, and this unity could be an obstacle or an aid to arbitration. It was attempted to be made an aid, but how could it be made an aid if, pending the efforts of "mediation and conciliation" of the dispute, as provided in § 2 of the act, other provisions of the act may be arbitrarily disregarded which are of concern to the members in the dispute? How can it be an aid, how can controversies which may seriously interrupt or threaten to interrupt the business of carriers (I paraphrase the words of the statute), 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? I say mere whim or caprice, for this is the liberty which is attempted to be vindicated as the Constitutional right of the carriers. And it may be exercised in mere whim and caprice. If ability, the qualities of efficient and faithful workmanship can be found outside of labor associations, surely they may be found inside of them. Liberty is an attractive theme, but the liberty which is exercised in sheer antipathy does not plead strongly for recognition.

There is no question here of the right of a carrier to mingle in his service "union" and "non-union" men. If there were, broader considerations might exist. In such a right there would be no discrimination for the "union" and no discrimination against it. The efficiency of an employee would be its impulse and ground of exercise.

I need not stop to conjecture whether Congress could or would limit such right. It is certain that Congress has not done so by any provision of the act under consideration. Its letter, spirit and purpose are decidedly the other way. It imposes, however, a restraint, which should be noticed. The carriers may not require an applicant for employment or an employee to agree not to become or remain a member of a labor organization. But this does not constrain the employment of anybody, be he what he may.

But it is said it cannot be supposed that labor organizations will, "by illegal or violent measures, interrupt or impair the freedom of commerce," and to so suppose would be disrespect to a coordinate branch of the Government and to impute to it a purpose

to accord to one class of wage-earners privileges withheld from another class of wage-earners engaged, it may be, in the same kind of labor and serving the same employer.

Neither the supposition nor the disrespect is necessary, and, it may be urged, they are no more invidious than to impute to Congress a careless or deliberate or purposeless violation of the Constitutional rights of the carriers. Besides, the legislation is to be accounted for. It, by its letter, makes a difference between members of labor organizations and other employees of carriers. If it did not, it would not be here for review. What did Congress mean? Had it no purpose? Was it moved by no cause? Was its legislation mere wantonness, and an aimless meddling with the commerce of the country? These questions may find their answers in In re Debs, 158 U.S. 564.

I have said that it is not necessary to suppose that labor organizations will violate the law, and it is not. Their power may be effectively exercised without violence or illegality, and it cannot be disrespect to Congress to let a committee of the Senate speak for it and tell the reason and purposes of its legislation. The Committee on Education, in its report, said of the bill:

The measure under consideration may properly be called a voluntary arbitration bill, having for its object the settlement of disputes between capital and labor, as far as the interstate transportation companies are concerned. The necessity for the bill arises from the calamitous results in the way of ill-considered strikes arising from the tyranny of capital or the unjust demands of labor organizations, whereby the business of the country is brought to a standstill and thousands of employees, with their helpless wives and children, are confronted with starvation.

And, concluding the report, said:

It is our opinion that this bill, should it became a law, would reduce to a minimum labor strikes which affect interstate commerce, and we therefore recommend its passage.

With the report was submitted a letter from the Secretary of the Interstate Commerce Commission which expressed the judgment of that body, formed, I may presume, from experience of the factors in the problem. The letter said:

With the corporations as employers on one side and the organizations of railway employees as the other, there will be a measure of equality of power and force which will surely bring about the essential requisites of friendly relation, respect, consideration, and forebearance.

And again:

It has been shown before the labor commission of England that, where the associations are strong enough to command the respect of their employers, the relations between employer and employee seem most amicable. For there, the employers have learned the practical convenience of treating with one thoroughly representative body instead of with isolated fragments of workmen, and the labor associations have learned the limitations of their powers.

It is urged by defendant in error that

there is a marked distinction between a power to regulate commerce and a power to regulate the affairs of an individual or corporation engaged in such commerce,

and how can it be, it is asked, a regulation of commerce to prevent a carrier from selecting his employees or constraining him to keep in his service those whose loyalty to him is "seriously impaired, if not destroyed, by their prior allegiance to their labor unions"? That the power of regulation extends to the persons engaged in interstate commerce is settled by decision. Employers’ Liability Cases, 207 U.S. 463, and the cases cited in Mr. Justice Moody’s dissenting opinion. The other proposition points to no evil or hazard of evil. Section 10 does not constrain the employment of incompetent workmen, and gives no encouragement or protection to the disloyalty of an employee or to deficiency in his work or duty. If guilty of either, he may be instantly discharged without incurring any penalty under the statute.

Counsel also makes a great deal of the difference between direct and indirect effect upon interstate commerce, and assert that § 10 is an indirect regulation, at best, and not within the power of Congress to enact. Many cases are cited which, it is insisted, sustain the contention. I cannot take time to review the cases. I have already alluded to the contention, and it is enough to say that it gives too much isolation to § 10. The section is part of the means to secure and make effective the scheme of arbitration set forth in the statute. The contention, besides, is completely answered by Employers’ Liability Cases, supra. In that case, as we have seen, the power of Congress was exercised to establish a rule of liability of a carrier to his employees for personal injuries received in his service. It is manifest that the kind or extent of such liability is neither traffic nor intercourse, the transit of persons or the carrying of things. Indeed, such liability may have wider application than to carriers. It may exist in a factory; it may exist on a farm, and in both places, or in commerce -- its direct influence might be hard to find or describe. And yet this court did not hesitate to pronounce it to be within the power of Congress to establish. "The primary object," it was said in Johnson v. Railroad, 196 U.S. 17, of the safety appliance act, "was to promote the public welfare by securing the safety of employees and travelers." The rule of liability for injuries is even more round about in its influence on commerce and as much so as the prohibition of § 10. To contend otherwise seems to me to be an oversight of the proportion of things. A provision of law which will prevent or tend to prevent the stoppage of every wheel in every car of an entire railroad system certainly has as direct influence on interstate commerce as the way in which one car may be coupled to another, or the rule of liability for personal injuries to an employee. It also seems to me to be an oversight of the proportions of things to contend that, in order to encourage a policy of arbitration between carriers and their employees which may prevent a disastrous interruption of commerce, the derangement of business, and even greater evils to the public welfare, Congress cannot restrain the discharge of an employee, and yet can, to enforce a policy of unrestrained competition between railroads, prohibit reasonable agreements between them as to the rates at which merchandise shall be carried. And mark the contrast of what is prohibited. In the one case, the restraint, it may be, of a whim -- certainly of nothing that affects the ability of an employee to perform his duties; nothing, therefore, which is of any material interest to the carrier; in the other case, a restraint of a carefully considered policy which had as its motive great material interests and benefits to the railroads, and, in the opinion of many, to the public. May such action be restricted, must it give way to the public welfare, while the other, moved, it may be, by prejudice and antagonism, is intrenched impregnably in the Fifth Amendment of the Constitution against regulation in the public interest.

I would not be misunderstood. I grant that there are rights which can have no material measure. There are rights which, when exercised in a private business, may not be disturbed or limited. With them we are not concerned. We are dealing with rights exercised in a quasi-public business, and therefore subject to control in the interest of the public.

I think the judgment should be affirmed.


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Chicago: McKenna, "McKenna, J., Dissenting," Adair v. United States, 208 U.S. 161 (1908) in 208 U.S. 161 208 U.S. 181–208 U.S. 190. Original Sources, accessed March 22, 2019,

MLA: McKenna. "McKenna, J., Dissenting." Adair v. United States, 208 U.S. 161 (1908), in 208 U.S. 161, pp. 208 U.S. 181–208 U.S. 190. Original Sources. 22 Mar. 2019.

Harvard: McKenna, 'McKenna, J., Dissenting' in Adair v. United States, 208 U.S. 161 (1908). cited in 1908, 208 U.S. 161, pp.208 U.S. 181–208 U.S. 190. Original Sources, retrieved 22 March 2019, from