Fourteenth Amendment, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
During the Lochner era, liberty of contract, as translated into what one Justice labeled the Allgeyer-Lochner-Adair-Coppage doctrine, 1 was used to strike down legislation calculated to enhance the bargaining capacity of workers as against that already possessed by their employers.
2 The Court did, however, on occasion sustain measures affecting the employment relationship, such as a statute requiring every corporation to furnish a departing employee a letter setting forth the nature and duration of the employee’s service and the true cause for leaving. 3 In Senn v. Tile Layers Union, 4 however, the Court began to show a greater willingness to defer to legislative judgment as to the wisdom and need of such enactments.
The significance of Senn 5 was, in part, that the case upheld a statute that was not appreciably different from a statute voided five years earlier in Truax v. Corrigan. 6 In Truax, the Court had found that a statute forbidding injunctions on labor protest activities was unconstitutional as applied to a labor dispute involving picketing, libelous statements, and threats. The statute that the Court subsequently upheld in Senn, by contrast, authorized publicizing labor disputes, declared peaceful picketing and patrolling lawful, and prohibited the granting of injunctions against such conduct. 7 The difference between these statutes, according to the Court, was that the law in Senn applied to
peaceful picketing only, whereas the law in Truax
was . . . applied to legalize conduct which was not simply peaceful picketing. Because the enhancement of job opportunities for members of the union was a legitimate objective, the state was held competent to authorize the fostering of that end by peaceful picketing, and the fact that the sustaining of the union in its efforts at peaceful persuasion might have the effect of preventing Senn from continuing in business as an independent entrepreneur was declared to present an issue of public policy exclusively for legislative determination.
Years later, after regulations protective of labor allowed unions to amass enormous economic power, many state legislatures attempted to control the abuse of this power, and the Court’s new-found deference to state labor regulation was also applied to restrictions on unions. Thus, the Court upheld state prohibitions on racial discrimination by unions, rejecting claims that the measure interfered unlawfully with the union’s right to choose its members, abridged its property rights, or violated its liberty of contract. Because the union
[held] itself out to represent the general business needs of employees and functioned
under the protection of the State, the union was deemed to have forfeited the right to claim exemption from legislation protecting workers against discriminatory exclusion. 8
Similarly, state laws outlawing closed shops were upheld in Lincoln Federal Labor Union v. Northwestern Iron & Metal Company 9 and AFL v. American Sash & Door Co. 10 When labor unions attempted to invoke freedom of contract, the Court, speaking through Justice Black, announced its refusal
to return . . . to . . . [a] due process philosophy that has been deliberately discarded. . . . The due process clause, it maintained, does not
forbid a State to pass laws clearly designed to safeguard the opportunity of nonunion workers to get and hold jobs, free from discrimination against them because they are nonunion workers. 11
And, in UAW v. WERB, 12 the Court upheld the Wisconsin Employment Peace Act, which had been used to proscribe unfair labor practices by a union. In UAW, the union, acting after collective bargaining negotiations had become deadlocked, had attempted to coerce an employer through calling frequent, irregular, and unannounced union meetings during working hours, resulting in a slowdown in production.
No one, declared the Court, can question
the State’s power to police coercion by . . . methods that involve
considerable injury to property and intimidation of other employees by threats. 13