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THE GREEN BAG
public policy of the United States favors labor unions — as shown by provisions for incorpo rating them with restrictions aimed to pre vent them or their members from pursuing their ends by intimidation or other illegal measures. Congress manifests the same spirit and acts upon the same public policy when, in legis lation designed to prevent or settle strikes, and to minimize interference with interstate commerce, it provides for voluntary arbi trations of differences between national carriers and their employees, and makes the labor organizations concerned legal parties to such arbitrations. Having thus recognized and promoted labor unions, Congress simply takes the next logical, almost necessary, step in the same direction when it seeks -to protect the employee of an interstate carrier against dis crimination and loss of employment simply because of his. membership of such a union. How could Congress do otherwise? ... It is a matter of common knowledge that all the material provisions of the Act of 1898 had their origin in the Chicago railway strike of 1894 — that their purpose was to prevent the recur rence of the evils and perils so emphatically impressed upon the public mind by that strike and its accompanying incidents. All of them are addressed to that one great end, and all are parts of one comprehensive scheme for the accomplishment of that end. This scheme the decision of the Court in question antago nizes, perhaps practically nullifies, by eliminat ing one of its most important features, viz., the employee's protection against loss of his job merely because of his membership of a labor union. The judicial department of the government thus puts itself in direct collision with the other departments — and a law which Congress has enacted as matter of important public policy, and which the executive stands ready to execute, the judicial department . annuls and will not permit to be executed." The court finds in the law an invasion of the liberty which the Fifth Amendment guarantees to employers of labor and employees alike, and to the argument that that liberty, so far as it is connected with interstate commerce is subject to the regulation of Congress, says. "What possible legal or logical connection is there between an employee's membership in a labor organization and- the carrying on of
interstate commerce?" Mr. Olney asserts that as a matter of fact there is an intimate connection, known perfectly to everybody, and of which the court should take judicial cognizance. It is archaic to deal with capital and labor in such indiction as if dealing with individuals. Capital has organized anil labor has been obliged to do the same to safeguard its interests. "Because of this direct and immediate connection between membership of a labor union and the carrying on of interstate com merce; because an interstate carrier's refusal of work to a member solely on the ground of such membership would in all human prob ability provoke a strike more or less analogous to the Chicago strike of 1894; Congress was satisfied a situation existed which called tor its interposition. It was possible for it to legislate on either of two lines. It might restrict the carrier's liberty in the matter of the employment and discharge of employees or it might restrict the liberty of employees in the matter of initiating and maintaining a strike. It used its discretion against the last and in favor of the first named riiethod — a discretion political in its essence and not subject to review by any other department of the government. "Mr. Olney finds equally untenable Mr. Justice Harlan's suggestion that the liberty of the individual guaranteed by the Fifth Amendment overrules and controls the national power to regulate commerce. It seems to him quite irreconcilable with previous decisions of the same court affirming the right of Congress to prescribe railroad safety appliances and to determine the liability of an interstate carrier to its'employees. " Inter state commerce is certainly as directly and seriously affected by the relations of interstate carriers and their employees to labor unions as it can be by the relations of such carriers and their employees inter sese." LABOR AND THE LAW. (THE RIGHT OF COMBINATION) . " Recent American Decisions and English Legislation Affecting Lab0r Unions," by Charles R. Darling, American Law Review (V. xlii, p. 200). The recent Massachusetts case of Pickett v. Walsh holding a strike by a union to b0 unlawful, where it arose not from a trade dispute with the employer, but because the
