not a commodity or article of commerce." The fifth amendment has thus stood as a bulwark against efforts to limit the issue of injunctions; and Senator Shipstead's bill was rejected by the subcommittee substantially on the ground that it would withdraw from this extended sort of property a type of relief hitherto enjoyed. But if, out of the relationship of employer and employee, a condition of involuntary servitude results, then the property rights protected by the fifth amendment must yield to the protection of human freedom announced and guaranteed by the thirteenth amendment. And, after all, isn't this all that the proponents of the measure seek? They aren't concerned with the property aspect of a contract of employment nor with the remedies for a breach on either side considered as a simple chose in action. It is the effect of the labor contract in the great industries which is to be considered in the effort to grant or withhold in respect to such contracts or relationships, the right to enjoin laborers from combining for their economic protection. The fifth amendment furnishes the employer ample protection in such relationships. The thirteenth should similarly furnish to employees the relief which has been denied by the courts by reason of the operation of the fifth amendment and the definitions by which the courts take the economic relationship of employer and employee under their control. The bill proposed in lieu of the substitute thus reaches the result which Senator Shipstead attempted to reach by the definition of property. This bill, although making what we regard as a permissible classification with respect to labor, places the whole subject squarely under the thirteenth amendment. And the relief sought for herein, when applied to a condition in the industrial world where involuntary servitude does in fact exist, is clearly within the power of Congress to grant. The second section of the thirteenth amendment gives Congress power by "appropriate legislation" to carry out the provisions of the amendment prohibiting involuntary servitude. Under this section, Congress clearly has a broad discretion in determining the exact scope of necessary legislation. There must, of course, be a reasonable relation to the constitutional grant of power, to justify a statutory prohibition. But what constitutes such a reasonable relation is a matter of legislative, not judicial, determination. This is common doctrine, well stated in Rose v. U. S. (274 Fed. 245): Unless the enactment has no substantial relation to the enforcement of the constitutional prohibition, * * * the court has no power to determine the wisdom of the enactment or challenge the manner of the exercise by Congress of the authority and discretion confided to it by the second section of this (eighteenth) constitutional amendment. In the preamble of the proposed bill, Congress declares as a matter of fact within the information of Congress, that certain conditions in modern industry amount to involuntary servitude. This declaration is no part of the law proposed, but it can not be ignored in the interpretation of that law. It establishes, beyond the proper scope of judicial authority to question, a foundation based upon the actual facts and conditions of modern life; it demonstrates that in the opinion of Congress the time has come for the legislative policy of the United States to keep step with economic development. The Constitution nowhere defines "involuntary servitude," but the Supreme Court has clearly and definitely exploded the notion that it is confined strictly to some set and definite system of slavery or peonage. In Bailey v. Alabama (219 U. S. 219, 240) the court, speaking through Mr. Justice, now Chief Justice, Hughes, declared: The language of the thirteenth amendment was not new. * * * While the immediate concern was with African slavery, the amendment was not limited to that. It was a charter of universal civil freedom for all persons, of whatever race, color, or estate, under the flag. The words involuntary servitude have a "larger meaning than slavery." * * * The plain intention was to abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit which is the essence of involuntary servitude. The power of Congress to "enforce" the thirteenth amendment must therefore, in the nature of things, involve a proper discretion as to the ultimate meaning and scope of the term "involuntary servitude." It must have power to determine how far conditions likely to give rise to involuntary servitude must themselves be prevented, in order to secure the freedom intended by the amendment. No better instance of such necessary incidental discretion can be found than in the case of the eighteenth amendment. The language of the amendment is very similar to that of the thirteenth The Congress shall have * * * power to enforce this article by appropriate legislation. and the subject thus entrusted to the legislative control of Congress, was, as in the thirteenth amendment, undefined in the amendment itself. In pursuance of this power, Congress, in the Volstead Act, set a limit to the scope of its regulatory legislation which has been strongly criticized as in fact beyond the intent of the term used in the amendment; it flatly declared that beverages containing one-half of 1 per cent alcohol should be subject to the constitutional prohibition against intoxicating liquor. But the Supreme Court held, in Ruppert v. Caffey (251 U. S. 264, 298): It is therefore clear both that Congress might reasonably have considered some legislative definition of intoxicating liquor to be essential to effective enforcement of prohibition and also that the definition provided by the Volstead Act was not an arbitrary one. Surely on the authority of the Ruppert case it is within the power of Congress to determine what industrial conditions are likely to give rise to a condition of involuntary servitude, and to prohibit such conditions as a violation of the thirteenth amendment. And it has been stated by the Supreme Court in Purity Extract Co. v. Lynch (226 U. S. 192): It does not follow that because a transaction separately considered is innocuous it may not be included in a prohibition the scope of which is regarded as essential in the legislative judgment to accomplish a purpose within the admitted power of the Government. The bill proposed in lieu of the substitute bill provides in direct terms that employees may combine and unite for their protection in labor disputes. It specifically legalizes concerted action. It condemns in express terms the yellow-dog contract. It denies injunctive relief in the courts of the United States and of the States. It is based primarily upon the thirteenth amendment, on the theory that a real condition of involuntary servitude is created when the injunction is used to compel men to remain at work, as in the Bedford Co. case. It may be argued that these conditions separately considered are not so directly related to the subject of involuntary servitude as to be within the power of Congress to prohibit. The answer is that these conditions are so interrelated in modern industry that they become integral parts of an industrial system which, especially when the injunction issues, reduces all employees covered by it to a condition of involuntary servitude. The situation as a whole may well be compared to a huge stockade with one entrance only. All the elements of servitude are present within the stockade, even when the entrance is left open. The men are employed by one employer who tenders them employment on his own terms. He has for his aid the yellow-dog contract; there is a fixed conception in the minds of the courts that he has a property right in the uninterrupted continuance of his business and in the labor of his employees. Economic conditions in and out of the stockade are such that the employee must accept the wages offered or starve. But the servitude is rendered still more complete and effective when we close the stockade entrance by the injunction decree. The vicious circle is now complete; the controlled industry, the one employment with no competing plant to offer opportunity to labor, the yellowdog contract, the property rights protected by the courts under the fifth amendment, and finally the injunction which deprives the employee of even the vestige of an alternative. And the terms of the injunction decree when carried into effect isolate the individual and tend to outlaw him as fully as a medieval decree of ex-communication. No one may help him or offer him aid or assistance. The hand of the chancellor rests heavily upon him. He must abide by the decree or go to jail. Read the decree in the Red Jacket case if you have any doubt of the terrible result. We have already acknowledged that the substitute bill has substantial constitutional support for its effort simply to restrict the exercise of the injunctive power by the Federal courts in labor disputes. The power of Congress over the jurisdiction and procedure of the inferior courts is undoubted. Apart from the possibility that the fifth amendment may prove an obstacle to its enforcement, there appears no objection to basing legislation for this purpose squarely upon Article III of the Constitution. With this restricted purpose in view, sections 4 and 7 of the lieu measure have been drafted as a restriction only on the courts of the United States with respect to the issuance of injunctions. These sections, in view of the separability clause in section 9, are clearly so independent that they would remain in effect, even if the other sections based on the thirteenth amendment should be held unconstitutional. In fact, we think the whole bill could still be regarded as valid with respect to the Federal courts, and the reference to courts of the States disregarded, if such reference could not be justified as a proper exercise of power under the thirteenth amendment. The substitute bill denies enforcement of the yellow-dog contract in the Federal courts. It legalizes concerted action of employees when the same acts would be lawful if committed by isolated individuals. It prohibits the issuance of injunctions in specified instances. All these objects are provided for in our proposed measure, with equal if not greater effectiveness; and the lieu measure has the additional merit of placing human labor above the mere property considerations of the fifth amendment. The provisions of the substitute bill with respect to procedure in cases of indirect contempt appear to be general in their character, and not confined to labor disputes; they would more properly be the subject of separate legislation. PHILIPPINE INDEPENDENCE BRIEF PREPARED BY DANIEL R. WILLIAMS, RELA- PRESENTED BY MR. BINGHAM FEBRUARY 17 (calendar day, MARCH 4), 1931.-Ordered UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON: 1931 |