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

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ADAIR v. UNITED STATES 208 U.S. 161 (1908)

After the Pullman strike, which paralyzed the nation's railroads, a federal commission blamed the antiunion activities of the railroads and recommended legislation which Congress enacted in 1898. The erdman act sought to free interstate commerce from railroad strikes by establishing a railroad labor board with arbitration powers and by protecting the right of railroad workers to organize in unions. This second objective was the subject of section ten of the act, which prohibited yellow dog contracts, blacklisting union members, and discharging employees solely for belonging to a union. The act applied to carriers engaged in interstate commerce. Adair, a manager of a carrier, fired an employee solely because of his union membership; a federal court found Adair guilty of violating section ten. On appeal the Supreme Court, by a vote of 6–2, found section ten unconstitutional for violating the Fifth Amendment's due process clause and for exceeding the powers of Congress under the commerce clause.

Justice john marshall harlan, who spoke for the Court, usually wrote broad commerce clause opinions, but this one was constricted. He could see "no legal or logical connection" between an employee's membership in a labor organization and the carrying on of interstate commerce. The Pullman strike, the federal commission, and Congress's finding that such a connection existed meant nothing to the Court. A week later the Court held, in loewe v. lawlor (1908), that members of a labor organization who boycotted a manufacturing firm, whose products were intended for interstate commerce, had restrained interstate commerce in violation of the sherman antitrust act. In Adair, however, the Court found no constitutional authority for Congress to legislate on the labor affairs of interstate railroads.

Most of Harlan's opinion dealt with the due process issue. He found section ten to be "an invasion of the personal liberty, as well as the right to property," guaranteed by the Fifth Amendment. It embraced the right of employers to contract for labor and the right of labor to contract for its services without government intervention. In his exposition of freedom of contract, which is a doctrine derived from substantive due process, Harlan contended that "it is not within the functions of government … to compel any person, in the course of his business and against his will, to accept or retain the personal services of another.…" The right of the employee to quit, said Harlan, "is the same as the right of the employer, for whatever reason, to dispense with the services of such employee." The Court forgot the more realistic view it had expressed in holden v. hardy (1898), and held that "any legislation" disturbing the "equality of right" arbitrarily interferes with "the liberty of contract which no government can legally justify in a free land." Justice joseph mckenna dissented mainly on the ground that the Court "stretched to its extreme" the liberty of contract doctrine. The Court overruled Adair in 1949.

Leonard W. Levy


Lieberman, Elias 1950 Unions Before the Bar. Pages 44–55. New York: Harper & Row.