Fairweather, Owen

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Labor Law in the Twentieth Century and the Collision between Two Economies

Chicago-Kent College of Law

Chicago-Kent Law ReviewVolume 40 | Issue 1 Article 5April 1963Labor Law in the Twentieth Century and theCollision between Two EconomiesOwen FairweatherFollow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreviewPart of the Law CommonsThis Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusionin Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, pleasecontact dginsberg@kentlaw.iit.edu.Recommended CitationOwen Fairweather, Labor Law in the Twentieth Century and the Collision between Two Economies, 40 Chi.-Kent L. Rev. 35 (1963).Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol40/iss1/5CHICAGO-KENTLAW REVIEWCopyright 1963, Chicago-Kent College of LawVOLUME 40 APRIL, 1963 NUMBER IGOVERNMENT UNDER LAWARTHUR J. GOLDBERG*IT IS A PRIVILEGE to participate in and to address the 75th Anni-versary Dinner of Chicago-Kent College of Law. I am particu-larly honored by the degree conferred upon me at the specialconvocation of the College this afternoon.'Chicago-Kent College of Law throughout its many years hasmade notable contributions to the progress of the law and to legaleducation. Its alumni grace the bench and bar of many states andserve the cause of justice in many communities. I am proud tonumber among my friends scores of graduates of the College whowere my colleagues at the bar during my many years of practicein Chicago. I am happy also to pay tribute to Dean William Zach-arias for his academic leadership, his outstanding scholarship, hishigh character and his dedication to the law.Since we honor a law school and its Dean, this is an appro-priate occasion to speak about government and law, subjects in* Associate Justice of the United States Supreme Court. The following address wasdelivered at a dinner at the Sheraton-Blackstone Hotel, May 8, 1963, honoring WilliamF. Zacharias, Dean of Chicago-Kent College of Law, on the occasion of the school's 75thAnniversary.1 The degree of Doctor of Laws (LL.D., Hon.) was conferred upon the HonorableArthur J. Goldberg, Associate Justice, Supreme Court of the United States, at a specialconvocation program held at the law school in the afternoon in recognition of JusticeGoldberg's work "ceaselessly and devotedly for the upholding of the rule of law in a freesociety, the protection and preservation of constitutional liberties for all citizens, regard-less of race, creed, color, or national origin, as well as the betterment of the lot of thepoor and unfortunate," and because Justice Goldberg as "lawyer, soldier, advocate,teacher of law, United States Secretary of Labor, Associate Justice of the Supreme Courtof the United States, and, most of all, as citizen .... symbolizes by his achievements theAmerican principle of equal opportunity for all."2 Justice Goldberg here makes reference to Dean Zacharias' record of over a quartercentury of distinguished teaching and legal scholarship in various capacities at Chicago-Kent College of Law from the time of his earning of the degree of LL.M. at Chicago-Kentin 1933, climaxed by his appointment as dean of the law school in 1959.CHICAGO-KENT LAW REVIEWwhich all are concerned. On occasions such as this we generallypay due homage to the fact that we are a government of laws andnot of men.Yet that principle or slogan, if you will, like all sweepinggeneralizations is not wholly true nor can it ever be even as an ulti-mate goal. For it is plainly evident that we have always been agovernment of law and men, and on occasions in our history moreof men than of law.Since the role of man is inescapable in goverment, it wouldbe better if we were to define our aspirations in terms of govern-ment under law or, more precisely, democratic government underlaw for this more nearly defines the aims of that remarkable groupof men who wrote our Constitution. The heart of the democraticfaith they expressed is government by the consent of the governed-but under law.Professor Bickel in a recent book3 has properly recognizedthat this ideal--democratic government under law-pulls in whatmay be termed two opposed directions. The people are to rule butunder law; majority rule is to apply but the rights of minoritiesare to be respected-the majority is to be checked. The executive,the legislature, the judges, the electorate at large are all to performtheir great roles but under the law-no one above it.I do not have to tell this audience how deep-rooted is thisprinciple of democratic government under law upon which ourWestern democracies rest. Its full implications were certainly notfully understood by the feudal barons who wrung Magna Cartafrom King John in 1215. But Sir Winston Churchill was surelyright when he said:The leaders of the barons in 1215 groped in the dim lighttowards a fundamental principle. Government must henceforwardmean something more than the arbitrary rule of any man. And... the law must stand even above the King. It was this idea per-haps only half understood that gave unity and force to the barons'opposition and made the Charter which they now demanded im-perishable. 4On this continent the struggle against the British was essen-8 Bickel, The Least Dangerous Branch-The Supreme Court of the Bar of Politics(1962).4 I Churhill, History of the English Speaking Peoples 253 (1956-8).GOVERNMENT UNDER LAWtially a struggle for a government of laws. Our great documentsreflect this, starting with the forerunner of the Declaration of In-dependence, the Letter to the People of Quebec, approved byCongress on October 26, 1774. The first grand right the Lettersays is representative government-making people "ruled by lawswhich they themselves approve, not by edicts of men over whomthey have no control." The next great right is trial by jury-theguarantee that life, liberty and property will not be taken withouta fair, public trial before a jury from the neighborhood. Thencomes the right to habeas corpus-the procedure whereby a courtcan quickly inquire into the legality of a man's imprisonment. Thefourth right is the free ownership of land-farm laborers beingpaid for their work, not rendering service by reason of subservienceto some overlord. The last right is freedom of the press-in broadterms designed not only for dissemination of political ideas and thecriticism of government, but also for the advancement of truth,science, morality and the arts in general. And by this documentand the Declaration of Independence and the Constitution, ourgoal of democratic government under law was proclaimed.We gather tonight to reflect upon the fundamentals of oursociety-what we mean by government under law and how we canpreserve and perfect it. In part we mean that government shouldserve our immediate material needs, but also, and more impor-tantly, should preserve fundamental and enduring values. Thesevalues include, in the imperishable words, the right to life, libertyand the pursuit of happiness; and what to Mr. Justice Brandeis wasthe supreme right: "the right to be let alone-the most compre-hensive of rights and the right most valued by civilized men." 5And foremost in our democratic creed are the rights to speak andto write freely; the right to worship God as one chooses; the sanc-tity of the conscience; and the dependency of government on theconsent of the governed.We meet today also to remind ourselves that, concerned as weare about ultimate ends, our way of life is equally concerned withmethod and means. The history of man's struggle to be free is inlarge degree a struggle to be free of oppressive procedures-ther Brandeis and Warren, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).CHICAGO-KENT LAW REVIEWright to be free from test oaths and legislative attainder; the rightto trial by jury; the right to confront the accuser face to face; theright to know the charge and to have a fair opportunity to defend.Dr. Johnson aptly told Boswell: "The habeas corpus is the singleadvantage our government has over that of other countries."'We cannot help note that both the procedure which we offerfor the protection of the rights of man and the rights themselvesare denied in the Soviet scheme of things and, sadly, in some othercountries, both old and new, which profess adherence to the demo-cratic faith. This gives the American ideal great advantages in theworld market of ideas-if we will only be true to it.How true are we to these principles? How truly are we ademocratic government under law?You will, I am sure, recall the circulation a few years ago bya newspaper of a petition incorporating the Bill of Rights and therefusal of most of those solicited to subscribe to the petition. Per-haps this can be explained away by the reluctance of people duringthat troubled era to become involved by signing anything, butwhat cannot be explained away is the lack of familiarity by manyof those approached with our basic document.You will recall also the fears expressed by Irving Dilliard,the respected journalist,7 that today were the Bill of Rights pro-posed for ratification it would be rejected. Perhaps this reflected anoverstatement, but notwithstanding it is properly a matter of deepconcern. But there are other more immediate manifestations ofour failure to achieve our goal of government under law-the ex-tent of lawlessness in our society is reflected in our statistics and isan overriding problem in every community.Tonight is not the occasion to elaborate on this obvious andmenacing fact or to analyze in detail the reasons for the ever grow-ing crime rate. But that we are in fact a government of men as wellas law lies at the root of the problems. For it is men both in and6 Boswell, Life of Samuel Johnson Mod. Lib. Ed. 348 (1791).7 The reference here is to the distinguished writer and lecturer, Irving Dilliard, LL.D.,Colby College, 1953, editorial writer and correspondent for the St. Louis Dispatch andthe Christian Science Monitor, who is perhaps best known for his biography of Brandeis,Mr. Justice Brandeis-Great American, 1941 and his collection of speeches of JusticeLearned Hand, Spirit of Liberty, 1952.GOVERNMENT UNDER LAWout of government who have failed to prevent unemployment, torid the cities of slums, to eradicate illiteracy, to abolish discrimina-tion in education and employment, to provide for proper mentalhealth programs, to deal with school drop-outs, to provide a properhome and family environment, and in countless other ways tohelp bring about the good society which will be inhospitable tocrime and delinquency.And, of course, as every judge in America knows, we are agovernment of men and not of law when law enforcement officialsdo not observe the law. We cannot have respect for the law, ifthose sworn to uphold it flout or violate it-notwithstanding theydo so in the name or under the guise of law enforcement.And equally we are not true to our fundamental principleswhen great private groups protected and benefited by our con-stitutional safeguards fail to recognize that these rights imposeobligations basic to the preservation of our democratic society. Arecent case in point is the New York newspaper strike. It is notproper in my present office nor am I armed with the facts to ap-praise the merits of this dispute. But it is appropriate for me toobserve that the newspaper industry, and that includes both pub-lishers and unions, enjoy a unique constitutional status-freedomof the press is protected by the First and Fourteenth Amendmentsfrom abridgment. And whether it is called a preferred or a funda-mental right, or by some other label, a free press is indispensableto the preservation of democracy under law.Yet if I may say so, I do not believe that either publishers orunions in the newspaper industry fully comprehend the duty im-plicit in their constitutional right to publish. That duty, which Iemphasize, is moral, and not legal, is voluntarily to agree uponmeans by which they can discharge their necessary function to pub-lish-to be a free press without interruption. I am confident thatthose means can be found without abridging management's orworkers' rights-if both parties approach the task in a spirit ofconstitutional dedication.Lawyers will soon be tested as to their fidelity to constitutionalprinciples. Our Court a few weeks ago ruled that the FourteenthAmendment requires that an indigent charged with crime beCHICAGO-KENT LAW REVIEWafforded the right of counsel.' This decision has been almost uni-versally acclaimed as a step toward our goal of equal justice underlaw. I ask you to reflect upon the responsibility which this constitu-tional principle imposes on the Bar and also to ask yourselveswhether the Bar is ready to assume it.Until both in the federal and state jurisdictions adequate pub-lic defender systems are established, the Bar will have to assumewhat will be a very great burden and it will be a measure of thefidelity of lawyers to the Constitution how they discharge it. Surely,it is not too much to ask of lawyers what doctors have traditionallydone, and that is to devote the equivalent of a few hours of theirprofessional day to protecting the legal rights of indigents.One final word. Judge Learned Hand in eloquent wordsvoiced great doubt as to whether courts could save a society whichby preachment and practice did not in its very soul commit itselfto the spirit of liberty, and, indeed, whether judicial review didnot do more harm than good. You remember what he said:I do not think that anyone can say what will be left of those(fundamental principles of equity and fair play which our Consti-tution enshrines); I do not know whether they will serve only ascounsels; but this much I think I do know-that a society so riventhat the spirit of moderation is gone, no court can save; that asociety where that spirit flourishes, no court need save; that in asociety which evades its responsibility by thrusting upon the courtsthe nurtures of that spirit, that spirit in the end will perish.9Perhaps because I am a new judge, I do not fully share hisskepticism as to the judicial role in our society. I should like tobelieve and I do believe that by asserting, defining, enunciating,applying, and educating, if you will, judges do play a significantpart as pronouncers and guardians of the enduring values of ourdemocracy under law, and that in so doing, judges nurture ratherthan diminish the spirit of liberty. But I do agree with the thoughtunderlying Judge Hand's statement that abiding dedication togovernment under law by all-governors and governed-is indis-pensable to the preservation of liberty.Tonight in honoring a law school devoted to law and justice,let us rededicate ourselves to "Government Under Law."8 Douglas v. California, 372 U.S. 353 (March 1963).9 Judge Learned Hand is well known for his many speeches relating to this sametopic, the "spirit of liberty," some of which are recorded by Mr. Irving Dilliard in theaforementioned collection, supra note 7.

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Labor Law in the Twentieth Century and the Collision between Two Economies

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