Cushman's "Doctrinal Synergies and Liberal Dilemmas"

If you'd like to see where Barry Cushman’s Rethinking the New Deal Court began, you now can, as he has posted Doctrinal Synergies and Liberal Dilemmas: The Case of the Yellow-Dog Contract as it appeared in the Supreme Court Review 1992 (1993): 235-93.  Here is the abstract:

The three decades spanning the years 1908 to 1937 saw a remarkable transformation of the Supreme Court's jurisprudence concerning the rights of workers to organize. In 1908, the Court held that a federal law prohibiting employers from discharging an employee because of his membership in a labor union violated the liberty of contract secured to the employer by the Fifth Amendment. In 1915, the Court similarly declared a state statute prohibiting the use of "yellow-dog" contracts unconstitutional. In 1937, by contrast, the Court upheld provisions of the Wagner Act prohibiting both discharges for union membership and the use of yellow-dog contracts. Thus, the doctrine of "liberty of contract" no longer operated as a bar to legislation protecting the rights of workers to organize for purposes of collective bargaining.

The tale of the yellow-dog contract is naturally of interest because of its centrality to the development of American labor law and the decline of substantive due process. Beyond this, however, the story can be seen as a critical chapter in the development of American liberal legalism. The yellow-dog contract provoked something of a crisis in liberal discourse, because it brought into conflict two time-honored liberal values: liberty of contract and freedom of association. Recent scholarship has shown how "liberty of contract" was forged from such diverse liberal resources as Adam Smith's liberal political economy, Jacksonian liberalism, and the Northern "free labor" ideology that animated the abolitionist movement. Freedom of association enjoyed no less venerable liberal pedigree. Its protection against government infringement enshrined in the First Amendment, the freedom to affiliate with the lawful organizations of one's choice had been a widely embraced feature of American culture since well before the Civil War. Indeed, the passion of the American people for voluntary associations had attracted the fascination of Alexis de Tocqueville during his journey to the United States in the 1830s.

The yellow-dog contract exposed a tension between these two values of American liberalism. Opponents of the yellow-dog contract contended that the employer was using his constitutionally protected liberty of contract as a means to inhibit his employee's freedom to associate with his fellow workingmen. In characteristically liberal terms, the answer to this charge would turn on whether the employee was seen as having surrendered his freedom of association voluntarily, or as a product of coercion. The answer to this question would in turn depend upon assumptions about the structure of the labor market, and these assumptions would change over time. Beneath this discourse, I believe, lay concerns about whether labor unions were properly analogized to the other sorts of voluntary associations celebrated by American liberalism. As those concerns became increasingly allayed over time, labor's advocates could more successfully appropriate the liberal rhetoric of associational freedom.

Yet the story of the demise of the yellow dog contract cannot be adequately understood by looking at cultural context alone. In order to understand the voting patterns of the various Justices and the views they expressed in their opinions, one must pay close attention to the development of doctrine. A study of the doctrine pertaining to the yellow-dog contract reveals to us the difficulties with the notion that substantive due process and constitutional federalism were merely convenient weapons in the arsenal of a reactionary Court devoted to the maintenance of financial and industrial elites. Instead, we may see the weblike, interconnected structure of "laissez-faire constitutionalism." The doctrinal manifestations of Commerce Clause and due process jurisprudence were not simply free-floating rules that could be changed or abandoned without consequences extending beyond the particular doctrine involved. These areas of doctrine were developmentally intra- and interdependent. Modifications of one substantive due process doctrine entailed changes in another; developments in due process and Commerce Clause doctrine produced mutual, synergistic ramifications. In short, doctrinal commitments made by Justices in one area of doctrine entailed corresponding commitments in other doctrinal domains. In order to follow the trail of the yellow dog contract, we must trace these ripple effects across structurally related areas of doctrine.