Mr. Brandeis on the long view deemed the preferential shop a more reliable form of security both for unions and for society than the closed shop; that he did so only serves to prove that these are pragmatic issues not appropriate for dogmatic solution.
Whatever one may think of Mr. Brandeis' views, they have been reinforced by the adoption of laws insuring against that undercutting of union standards which was one of the most serious effects of a dissident minority in a union shop. Under interpretations of the National Labor Relations Act, 29 U.S.C.A. 151 et seq., undisturbed by the Taft-Hartley Act, 29 U.S.C.A. 141 et seq., 9 and of the Railway Labor Act, 45 U.S.C.A . 151 et seq., the bargaining representative designated by a majority of employees has exclusive power to deal with the employer on matters of wages and working conditions. Individual contracts, whether on more or less favorable terms than those obtained by the union, are barred. J. I. Case Co. v. National Labor Relations Board, 321 U.S. 332 ; Order of R. R. Telegraphers v. Railway Express Agency, 321 U.S. 342 ; Medo Photo Supply Corp. v. National Labor Relations Board, 321 U.S. 678 ; see Elgin, [335 U.S. 538 , 553] Joliet & Eastern R. Co. v. Burley, 325 U.S. 711, 737 , 1296, n. 35. Under these laws, a non-union bidder for a job in a union shop cannot, if he would, undercut the union standards.
Even where the social undesirability of a law may be convincingly urged, invalidation of the law by a court debilitates popular democratic government. Most laws dealing with economic and social problems are matters of trial and error. 10 That which before trial appears to be demonstrably bad may belie prophecy in actual operation. It may not prove good, but it may prove innocuous. But even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed than that the law should be aborted by judicial fiat. Such an assertion of judicial power deflects responsibility from those on whom in a democratic society it ultimately rests-the people. If the proponents of union- security agreements have confidence in the arguments addressed to the Court in their 'economic brief,' they should address those arguments to the electorate. Its endorsement would be a vindication that the mandate of this Court could never give. That such vindication [335 U.S. 538 , 554] is not a vain hope has been recently demonstrated by the voters of Maine, Massachusetts, and New Mexico.11 And although several States in addition to those at bar now have such laws,12 the legislatures of as many other States have, sometimes repeatedly, rejected them. 13 What one State can refuse to do, another can undo. [335 U.S. 538 , 555] But there is reason for judicial restraint in matters of policy deeper than the value of experiment: it is fonded on a recognition of the gulf of difference between sustaining and nullifying legislation. This difference is theoretical in that the function of legislating is for legislatures who have also taken oaths to support the Constitution, while the function of courts, when legislation is challenged, is merely to make sure that the legislature has exercised an allowable judgment, and not to exercise their own judgment, whether a policy is within or without 'the vague contours' of due process. Theory is reinforced by the notorious fact that lawyers predominate in American legislatures. 14 In practice also the difference is wide. In the day-to-day working of our democracy it is vital that the power of the non-democratic organ of our Government be exercised with rigorous self-restraint. Because the powers exercised by this Court are inherently oligarchic, Jefferson all of his life thought of the Court as 'an irresponsible body'15 nd 'independent of the nation itself.'16 The Court is not saved from being oli- [335 U.S. 538 , 556] garchic because it professes to act in the service of humane ends. As history amply proves, the judiciary is prone to misconceive the public good by confounding private notions with constitutional requirements, and such misconceptions are not subject to legitimate displacement by the will of the people except at too slow a pace. 17 Judges appointed for life whose decisions run counter to prevailing opinion cannot be voted out of office and supplanted by men of views more consonant with it. They are even farther removed from democratic pressures by the fact that their deliberations are in secret and remain beyond disclosure either by periodic reports or by such a modern device for securing responsibility to the electorate as the 'press conference.' But a democracy need not rely on the courts to save it from its own unwisdom. If it is alert-and without alertness by the people there can be no enduring democracy-unwise or unfair legislation can readily be removed from the statute books. It is by such vigilance over its representatives that democracy proves itself.
Our right to pass on the validity of legislation is now too much part of our constitutional system to be brought [335 U.S. 538 , 557] into question. But the implications of that right and the conditions for its exercise must constantly be kept in mind and vigorously observed. Because the Court is without power to shape measures for dealing with the problems of society but has merely the power of negation over measures shaped by others, the indispensable judicial requisite is intellectual humility, and such humility presupposes complete disinterestedness. And so, in the end, it is right that the Court should be indifferent to public temper and popular wishes. Mr. Dooley's 'th' Supreme Coort follows th' iliction returns' expressed the wit of cynicism, not the demand of principle. A court which yields to the popular will thereby licenses itself to practice despotism, for there can be o assurance that it will not on another occasion indulge its own will. Courts can fulfill their responsibility in a democratic society only to the extent that they succeed in shaping their judgments by rational standards, and rational standards are both impersonal and communicable. Matters of policy, however, are by definition matters which demand the resolution of conflicts of value, and the elements of conflicting values are largely imponderable. Assessment of their competing worth involves differences of feeling; it is also an exercise in prophecy. Obviously the proper forum for mediating a clash of feelings and rendering a prophetic judgment is the body chosen for those purposes by the people. Its functions can be assumed by this Court only in disragard of the historic limits of the Constitution.
Mr. Justice RUTLEDGE, concurring.
I concur in the Court's judgment in No. 34, Whitaker v. North Carolina. The appellants were convicted under [335 U.S. 538 , 558] a warrant which charged only, in effect, that they had violated the statute 'by executing a written agreement or contract' for a closed or union shop. 1 There was neither charge nor evidence that the employer, after the statute became effective, had refused employment to any person because he was not a member of a union. The charge, therefore, and the conviction were limited to the making of the contract. No other provision of the statute is now involved, as the state's attorney general conceded, indeed as he strongly urged, in the argument here. As against the constitutional objections raised to this application of the statute, I agree that the legislature has power to proscribe the making of such contracts, and accordingly join in the judgment affirming the convictions.
In No. 27, American Federation of Labor v. American Sash & Door Company, and in No. 47, Lincoln Federal Labor Union v. Northwestern Iron & Metal Company, as against the constitutional questions now raised, [335 U.S. 538 , 559] I am also in agreement with the Court's decision, but subject to the following reservation. Because no strike has been involved in any of the states of fact, no question has been presented in any of these cases immediately involving the right to strike or concerning the effect of the Thirteenth Amendment. Yet the issues so closely approach touching that right as it exists or may exist under that Amendment that the possible effect of the decisions upon it hardly can be ignored. 2 Strikes have been called throughout union history in defense of the right of union members not to work with nonunion men. If today's decision should be construed to permit a state to foreclose that right by making illegal the concerted refusal of union members to work with nonunion workers, and more especially if the decision should be taken as going so far as to permit a state to enjoin such a strike,3 I should want a complete and thorough reargument of these cases before deciding so momentous a question.
But the right to prohibit contracts for union security is one thing. The right to force union members to work with nonunion workers is entirely another. Because of this difference, I expressly reserve judgment upon the latter question until it is squarely and inescapably presented. Although this reservation is not made expressly by the Court, I do not understand its opinion to foreclose this question.
Mr. Justice MURPHY concurs in this opinion insofar as it applies to Nos. 34 and 47.
[ Footnote 1 ] American Federation of Labor v. American Sash & Door Co., 67 Ariz. 20, 189 P.2d 912.
[ Footnote 2 ] Ariz.Code Ann. 56-120 (1939).
[ Footnote 3 ] Ariz.Sess.Laws 1947, ch. 81, p. 173.
[ Footnote 1 ] Of course, theory never wholly squared with the facts. Even while laissez faire doctrines were dominant, State activity in economic affairs was considerable. See Handlin, Commonwealth: A Study of the Role of Government in the American Economy: Massachusetts, 1774Ä1861 (1947); Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776Ä1860 (1948).
[ Footnote 2 ] See, e.g., State of Arizona Initiative and Referendum Publicity Pamphlet, 1946 (Compiled and Issued by the Secretary of State); Testimony before the Nebraska State Legislative Committee on Labor and Public Welfare, March 21, 1947 (transcript of the Committee's record of the substance of the testimony kindly furnished by the Department of Justice of Nebraska); The Case against the Closed Shop in Nebraska, a pamphlet published by the 'Right-to-Work Committee'; N.C.Laws 1947, c. 328, 1 ( preamble). As to the similar purpose of similar legislation in other States, see, e.g., The Open Shop in Virginia, Report of the Virginia Advisory Legislative Council to the Governor of Virginia, House Doc. No. 2, p. 7 (1947); Address of Wm. M. Tuck to the General Assembly and People of Virginia, Extra Session, House Doc. No. 1, pp. 8Ä9 (1947); Tucumcari (N.M.) Daily News, Oct. 6, 1948, p. 3, col. 3 (report of radio addresses by sponsors of proposed 'right-to-work amendment').
[ Footnote 3 ] In the following table, 'union membership' includes all members of AFL, CIO, and independent or unaffiliated unions, including Canadian members of international unions with headquarters in the United States; the 'employment' figures include all non-agricultural employees (i.e., wage and salary workers), non-agricultural self-employed, unpaid family workers, and domestic-service workers.
Union Year Membership Employment (thousands) (thousands) 1898 467 -------- 1900 791 17,826 1903 1,824 20,202 1908 2,092 22,871 1913 2,661 27,031 1918 3,368 33,456 1923 3,629 32,314 1928 3,567 35,505 1933 2,857 28,670 1938 8,265 34,530 1943 13,642 45,390 1948 15,600 50,400
The 'union-membership' totals, except for 1948, are taken from Membership of Labor Unions in the United States, U.S. Dept. of Labor, Bureau of Labor Statistics (mimeographed pamphlet); the 'union-membership' and 'employment' totals for 1948 are preliminary estimates by the Bureau of Labor Statistics. The 'employment' figures for years up to 1928 are taken from Employment and Unemployment of the Labor Force, 1900Ä1940, 2 Conference Board Economic Record, 77, 80 (1940); 'employment' figures for years since 1929, except 1948, and the basis upon which they are estimated may be found in Technical Note, 67 Monthly Labor Rev., No. 1, p. 50 (1948).
[ Footnote 4 ] Section 2, Fourth, of the 1934 Amendment, 48 Stat. 1187, of the Railway Labor Act of 1926, 44 Stat. 577, 45 U.S.C. 152, Fourth, 45 U.S.C. A. 152, subd. 4, appears on its face to bar union-shop agreements, and it has been so interpreted. 40 Op.Atty.Gen., No. 59 (Dec. 29, 1942). The wisdom of such a legislative policy is of course not for us to judge.
In the following table, 'Membership of Brotherhoods' includes the Brotherhood of Locomotive Engineers, the Brotherhood of Locomotive Enginemen and Firemen, the Order of Railway Conductors, and the Brotherhood of Railroad Trainmen, with the Canadian membership of each, but not railroad employees who are members of CIO or independent unions. The 1919 figure for 'Employment Class I Railroads' includes all, not merely Class I, operating carriers.
Membership of Employment Brotherhoods Class I Railroads Year (thousands) (thousands) 1919 456 1,908 1924 434 1,774 1929 423 1,661 1934 268 1,008 1939 303 988 1944 442 1,415 1947 450 1,352
The 'Membership of Brotherhoods' figures are estimates made available through the kindness of the Bureau of Labor Statistics. Those for 1924Ä 1934 are based on Wolman, Ebb and Flow in Trade Unionism 230Ä31 (1936). The figures for 'Employment Class I Railroads' have been obtained from the I.C.C. annual reports entitled Statistics of Railways in the United States, that for 1919 from the 33d Ann.Rep. at 21 (1922); that for 1924 from 38th Ann.Rep. at 25 (1926); those for 1929, 1934, and 1939 from 54th Ann.Rep. at 59 (1942); that for 1944 from 60th Ann.Rep. at 55 (1948); that for 1947 from I.C.C., Bureau of Transport Economics and Statistics, Statement No. MÄ 300, Wage Statistics of Class I Steam Railways in the United States (1947).
[ Footnote 5 ] See U.S. Dept. Labor, Report of the Commission on Industrial Relations in Great Britain 23 (1938); U.S. Dept. Labor, Report of the Commission on Industrial Relations in Sweden 9 (1938). Cf. T e Universal Declaration of Human Rights, Art. 20, cl. 2, adopted by the General Assembly of the United Nations, Dec. 11, 1948, declaring that 'No one shall be compelled to belong to an association.'
[ Footnote 6 ] Sen.Doc.No.415, 64th Cong., 1st Sess. 7681. For other expressions of Mr. Justice Brandeis' sympathy for the cause of trade unions, see id. at 7659Ä60, 7662, 7667; Brandeis, The Employer and Trades Unions in BusinessÄa Profession 13 (1914); Industrial Co-operation, 3 Filene Co- operative Association Echo, No. 3, p. 1 (May, 1905), reprinted in The Curse of Bigness 35 (Fraenkel ed. 1935); Big Business and Industrial Liberty, reprinted in id. at 38.
7. Copy obtained from the collection of Brandeis papers at the Law Library of the University of Louisville, to which I am indebted. The latter is quoted in part in Mason, Brandeis: A Free Man's Life 301 (1946). See also testimony before the Commission on Industrial Relations, op. cit. supra, note 6, at 7680Ä81. As an alternative to the closed or union shop, Mr. Brandeis advocated the 'preferential union shop,' which, apparently, is also barred by the Arizona, Nebraska, and North Carolina laws. For accounts of the working of the 'preferential union shop,' see Moskowitz, The Power for Constructive Reform in the Trade Union Movement, 2 Life and Labor 10 (1912); Winslow, Conciliation, Arbitration, and Sanitation in the Cloak, Suit, and Skirt Industry in New York City, 24 Bulletin of the Bureau of Labor, No. 98, Jan., 1912, H.R.Doc.No.166, 62d Cong., 2d Sess. 203, 215.
[ Footnote 8 ] Copy obtained from the University of Louisville; quoted in part in Mason, op. cit. supra, note 7, at 303Ä04.
[ Footnote 9 ] See H.R.Rep.No.245, 80th Cong., 1st Sess. 17; 93 Daily Cong.Rec. 4491 (May 1, 1947).
[ Footnote 10 ] Examples of legislative experimentation undertaken to meet a recognized need were the bank-deposit guaranty laws passed in the wake of the panic of 1907 by Kansas, Nebraska, and Oklahoma. Despite serious doubts of their wisdom, the laws were sustained against due-process attack in Noble State Bank v. Haskell, 219 U.S. 104, 32 L.R.A., N.S., 1062, Ann.Cas.1912A, 487, and Id., 219 U.S. 575 ; Shallenberger v. First State Bank of Holstein, Nebraska, 219 U.S. 114 ; Assaria State Bank v. Dolley, 219 U.S. 121 . Experience proved the laws to be unworkable, see Robb, Guaranty of Ba k Deposits in 2 Encyc.Soc.Sciences 417 (1930). But since no due-process obstacle stood in the way, it remained possible to profit by past errors and attempt a more mature solution of the problem on a national scale. See Sen.Rep.No.77, 73d Cong., 1st Sess. 9Ä13; H.R.Rep.No.150, 73d Cong., 1st Sess. 5Ä7. The result was establishment of the Federal Deposit Insurance Corporation by the Banking Act of 1933, 48 Stat. 168, 12 U.S.C. 264, 12 U.S.C.A. 264. If that expedient should prove inadequate, the way is open for further experimentation. See Note, The Glass-Steagall Banking Act of 1933, 47 Harv. L.Rev. 325, 330Ä32 (1933).
[ Footnote 11 ] On Sept. 13, 1948, the voters of Maine rejected 'An Act to Protect the Right to Work and to Prohibit Secondary Boycotts, Sympathetic Strikes and Jurisdictional Strikes' and 'An Act Protecting the Right of Members and Nonmembers of Labor Organizations to the Opportunity to Work.' The vote in favor of the first bill was 46,809; for the second, 13,676; against both bills, 126,285. These figures were kindly furnished by the Deputy Secretary of State of the State of Maine.
On Nov. 2, 1948, the voters of Massachusetts rejected a measure prohibiting 'the denial of the opportunity to obtain or retain employment because of membership or non-membership in a labor organizatiion,' by a vote of 1,290,310 to 505,575. Report of the Executive Department of the Commonwealth of Massachusetts, Nov. 24, 1948, p. 60.
On the same day the voters of New Mexico rejected a similar bill by a vote of 60,118 to 41,387 (incomplete returns). See Clovis (N.M.) News Journal, Nov. 5, 1948, p. 1, col. 3.
[ Footnote 12 ] Ark.Const. Amend. No. 34, Nov. 7, 1944, and Acts of Ark.1947, Act 101; Del,.laws 1947, c. 196, 30; Fla.Const. Decl. of Rights 12, as amended Nov. 7, 1944; Ga.Laws 1947, No. 140, p. 616; Iowa Laws 1947, c. 296; La.Gen.Stat. 4381.2, Dart.1939, Act No. 202 of 1934, 2; Md.Ann. Code Gen.Laws 1939, art. 100, 65; Nev.Comp.Laws 1929, 10473; N.D.Laws 1947, c. 243; S.D.Const. art. 6, 2, as amended Nov. 1, 1946, and Laws 1947, c. 92; Tenn.Public Acts 1947, c. 36; Texas Laws 1947, c. 74, Vernon's Ann.Civ.St. art. 5207a; Va.Acts of Assembly 1947, c. 2.
For a valuable digest of State laws regulating labor activity see Killings-worth, State Labor Relations Acts, Appendix A, by Beverley Kritzman Killingsworth, at 267 (1948). It shows the variety and empiric character of such legislation for a single decade (1937Ä47).
[ Footnote 13 ] The following list of rejected anticlosed-shop laws has been compiled from U.S. Dept. Labor, Division of Labor Standards, Legislative Reports, 1939 to date.
Calif.: A.B.1560, 1941; S.B.974, 1941; Conn.: H.B.557, S.B.823, 1939; H.B.302, 1947; Kans.: H.B.256, S.B.410, 1939; S.C.Res.No.10, 1945; Ky.: S. B.231, 1946; Mass.: H.B.864, 1947; Minn.: S.B.102, 1947; Miss.: H.B.714, 1942; H.C.R.21, 1944 (semble); H.B.171, 1946; H.B.328, 1948; H.B.1000, 1948; Mo.: S.B.144, 1945; N.H.: H.B.225, 1945; Ohio: H.B.49, 1947; Utah: S. J.R.15, H.J.R.15, 1947.
[ Footnote 14 ] See, e.g., 25 U.S.News, No. 22, p. 11 (Nov. 26, 1948).
[ Footnote 15 ] Letter to Charles Hammond, Aug. 18, 1821, 15 Writings of Thomas Jefferson 330, 331 (Memorial ed., 1904).
[ Footnote 16 ] Letter to Samuel Kercheval, July 12, 1816, 15 id. at 32, 34. For similar expressions of Jefferson's alarm at what he felt to be the dangerous encroachment of the judiciary upon the other functions of government, see his letters to William B. Giles, April 20, 1807, 11 id. at 187, 191; to Caesar Rodney, Sept. 25, 1810, 12 id. at 424, 425; to John Taylor, May 28, 1816, 15 id. at 17, 21; to Spencer Roane, Sept. 6, 1819, 15 id. at 212; to Thomas Ritchie, Dec. 25, 1820, 15 id. at 297; to James Pleasants, Dec. 26, 1821, 12 Works of Thomas Jefferson, 213, 214 (Federal ed., 1905); to William T. Barry, Joly 2, 1822, 15 Writings, supra, at 388; to A. Coray, Oct. 31, 1823, 15 id. at 480, 487; to Edward Livingston, March 25, 1825, 16 id. at 112. See also the passage of Jefferson's Autobiography reprinted in 1 Writings, supra, at 120Ä22. And see Commager, Majority Rule or Minority Rights 28Ä38 (1943).
[ Footnote 17 ] In time, of course, constitutional obstacles may disappear or be removed. Yet almost twenty years elapsed between invalidation of the income tax in Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601 , and adoption of the Sixteenth Amendment. And it took twenty years to establish the constitutionality of a minimum wage for women: it was put in jeopardy by an equally divided Court in Stettler v. O'Hara, 243 U.S. 629 , and found unconstitutional in Adkins v. Children's hospital, 261 U.S. 525, 24 A.L.R. 1238, which was not overruled until West Coast Hotel Co. v. Parrish, 300 U.S. 379, 400 , 585, 108 A.L.R. 1330. The frustration of popular government, moreover, is not confined to the specific law struck down; its backwash drowns unnumbered projects that might otherwise be put to trial.
[ Footnote 1 ] The warrant, insofar as is material, charged that the appellants had entered into '* * * an illegal combination or conspiracy in restraint of the right to work and of trade or commerce in the State of North Carolina and against the public policy of the State of North Carolina, by executing a written agreement or contract by and between said employer and said Labor Unions and Organizations or combinations, whereby persons not members of said unions or organizations are denied the right to work for said employer, or whereby membership is made a condition of employment or continuation of said employment by said employer and whereby said named unions acquired an employment monopoly in any and all enterprises which may be undertaken by said employer are required to become or remain a member of a labor union or labor organization as a condition of employment or continuation of employment by said employer whereby said unions acquire an employment monopoly in any and all enterprises entered into by said employer in violation of House Bill #229, Session 1947, General Assembly of North Carolina, Chapter 328, 1947 Session Laws of North Carolina, and particularly sections 2Ä3 & 5 thereof, and Chapter 75 of the General Statutes of N.C. * * *.'
[ Footnote 2 ] See note 3.
[ Footnote 3 ] The syllogism might well be: The decisions in the present cases permit a state to make 'illegal' any discrimination against nonunion workers on account of that status in relation to securing or retaining employment; strikes for 'illegal objects' are 'unlawful'; 'unlawful' strikes may be enjoined; a strike by union members against working with nonunion employees is a strike for an 'illegal object'; therefore such a strike may be enjoined.