Guest Essayist: State Representative David Eastman

Can Congress Discriminate Against Non-Union Members?

In 1898, Congress passed the Erdman Act, making it a crime to fire an employee for belonging to a union. Because the Constitution does not expressly give the federal government the power to regulate employment, Congress limited the law to apply only to employees involved in interstate commerce, thereby taking advantage of a clause in Article I, Section 8 of the Constitution, which states:

“The Congress shall have power…To regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

When the Constitution was first written, the power to regulate commerce between states was given to the federal government to prevent states from taxing and regulating one another.  If this power had not been given to the federal government, Virginia would have been able to tax any goods traveling by land between the northern states and the southern states, and Delaware would have been able to tax goods that landlocked Pennsylvanians wanted to get to port.  In short order, each of the states would have been at each other’s throats.  To avoid this, it was determined in the Constitution that states would not have that power.

In 1906, eight years after Congress passed the Erdman Act, Mr. O.B. Coppage was employed as a fireman by the Louisville and Nashville Railroad Company.  At that time, the term “fireman” referred not to a firefighter, but to an employee whose job it was to shovel coal into a locomotive engine, and Coppage belonged to a union called the Order of Locomotive Firemen.  William Adair threatened to fire Coppage if he did not leave the union, and then fired him when he refused.  Adair was convicted of violating the Erdman Act and fined $100. He appealed the conviction, and his case was heard by the Supreme Court in the case Adair v. U.S. (1908).

The opinion of the Court was delivered by Justice John Marshall Harlan, who was then well known on the Supreme Court for his principled stands against racial discrimination in other cases.  He saw this case as fundamentally involving discrimination as well, but not racial discrimination.  He wrote, “the court has reached a conclusion which, in its judgment, is consistent with both the words and spirit of the Constitution and is sustained as well by sound reason.”

In the case, the U.S. attorney general tried unsuccessfully to defend the 1898 law that protected union members from being fired.  He argued that the law was passed in response to The Great Railroad Strike that took place in Chicago in 1894, and that Congress passed the law to protect interstate commerce from being interrupted by future strikes.

The Supreme Court responded that it could not seriously consider that Congress would give privileges to some Americans (union members) over other Americans (non-union members) in response to threats, without impugning the dignity of Congress as an independent branch of government, and that it would not presume that union members would illegally threaten to interrupt the freedom of commerce among the several states any more than non-union members would.

In other words, the Court stated very diplomatically that someone extorting special favors out of Congress by threatening to break the law goes against the spirit of the Constitution, and is certainly not an acceptable reason to deprive some Americans of their equal rights under the Constitution and U.S. laws.

The Court noted that the Erdman Act attempted to discriminate in only one direction. It made it a crime to fire an employee for belonging to a union, but it did not make it a crime to fire an employee for not belonging to a union.  If it could make such a law, Congress would logically also have the power to compel railroad companies to hire only union workers, or conversely, it would have the power to compel railroad companies to hire only non-union workers.  Because such a power was obviously repugnant to the Constitution, the Court found the law to be an unconstitutional violation of liberty.

Quoting from a law textbook, Justice Harlan observed for the Court:

“It is a part of every man’s civil rights that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim,  caprice, prejudice or malice. With his reasons neither the public nor third persons have any legal concern.”

In restating the words of Thomas McIntyre Cooley, Justice Harlan was not only quoting the former Chief Justice of the Michigan Supreme Court, but also the charter member and first president of the Interstate Commerce Commission (the quotation is from Cooley’s textbook “The Wrongs which Arise Independently of Contract”).

Justice Harlan concluded:

“it is not within the functions of government — at least in the absence of contract between the parties — to compel any person in the course of his business and against his will to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another.”

Because there was no contract between the employee and the employer in this case, either were free to leave at any time.  The Court found that in

“all such particulars the employer and the employe [sic] have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land.”

Accordingly, the Court declared that the law prohibiting an employer from firing a union member was an unconstitutional violation of the right to liberty and to property, which are both protected by the 5th Amendment.

Later Supreme Courts have since relaxed their defense of the liberty and property rights of Americans, and now support the federal government exercising much greater power over employment and other aspects of American society, even in cases when there is only a negligible impact on interstate commerce.

Adair v. United States (1908) Supreme Court decision:

The Honorable David Eastman is a graduate of West Point and a former Captain in the U.S. Army. He has served at each level of U.S. government; city, county, borough, state and federal, and in each case was obliged to take an oath to support and defend the U.S. Constitution; He currently serves as an Alaska firefighter and as a State Representative in the Alaska House of Representatives; He and his family live in Wasilla, Alaska.

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