Michael Hodder and Q. David Bowers
An Analysis of Holden V. Hardy 169 U.S. 366
The arguments pro Bert's position have been published in 169 U.S. 366. Written with a care for the precision of meaning that the English language is capable of, they are very elegant, concisely worded statements of position. The Court's decision is more relaxed in tone, as would be expected, and betrays a wry sense of humor when rehearsing one of Bert's less persuasive arguments.
Bert Holden argued that the state's police power could regulate the conditions of all kinds of contracts only when those conditions could be shown to affect the general well-being of the public. Regulation of contracts governing activities of specific classes of persons was, therefore, outside the competence of the state's police power. Should the police power be held to extend into the exercise of a citizen's contractual rights, where such contracts were between individuals and not a matter of concern to the general well-being of the state, then the police power would not be bounded and the states could find it in their power to regulate all aspects of business and employment and all matters of contract as they willed. Constitutionally, the Fourteenth Amendment secured all citizens the right "to pursue unmolested a lawful employment in a lawful manner;' and this had been denied to Bert by the State of Utah.
The key to Bert's argument can be found in the following extract from it:
It is, therefore, not within the power of the legislature to prevent persons who are sui generis, and otherwise perfectly competent to contract, from entering into employment and voluntarily making contracts in relation thereto merely because the employment in which they are to engage, although perfectly legal and proper in itself, may be considered by the legislature to be dangerous or injurious to the health of the employee; and if such right to contract cannot be prevented, it certainly cannot be restricted by the legislature to suit its own ideas of the ability of the employee to stand the physical and mental strain incident to the work. The character of the work to be performed, the number of hours a day in which the employee shall work, and the amount of compensation to be paid therefore are purely and necessarily personal matters between the parties to the contract, and are regulated by the terms thereof and by the will of the employer, influenced by considerations as to the requirements of his business and the condition of the market for his products, etc., and it is clear, as it seems to us, that so long as the employment does not interfere with the rights or health of others, the legislature cannot prevent it or regulate any of its terms.
As we can see, the basis of Bert's argument was that the state had no power to regulate the terms of contracts entered into by private parties as employers and employees where the activities engaged upon did not affect the health or well-being of the general public. It assumed that market conditions were the governing factors in the length of the working day: a strong market might call for longer days to produce more, while a weak one might see reduced hours and layoffs. Further, the argumentassumed an equality of status and power to contract freely in both employer and employee. Constitutionally, the argument was a strict definition one, holding there should be no extension of state authority over common business practices not already regulated by law.
The Court decided 7-2 against Bert, its opinion being written by Mr. Justice Brown (Associate Justice 1890-1906). Bert had sued his writs of error on the grounds of denial of due process of justice guaranteed by the 14th Amendment. After reviewing recent applications of the amendment in cases before the Court, Justice Brown found that due process of the law was due process according to the law of the land. This process was regulated by the various laws of the states. Therefore, the state had the power to define what constituted due process, in one way by legislation. In his opinion, Mr. Justice Brown wrote:
An examination of both these classes of cases under the 14th Amendment [those in which the state discriminated against a particular class of persons and those in which the state altered customary due process by legislation] will demonstrate that, in passing upon the validity of state legislation under that amendment, this court has not failed to recognize the fact that the law is, to a certain extent, a progressive science; that in some of the States methods of procedure, which at the time the Constitution was adopted were deemed essential to the protection and safety of the people, or to the liberty of the citizen, have been found to be no longer necessary; that the restrictions which had formerly been laid upon the conduct of individuals, or on classes of individuals, had proved detrimental to their interests; while, upon the other hand, certain other classes of persons, particularly those engaged in dangerous or unhealthful employments, have been found to be in need of additional protection.
Justice Brown held that due process was what the state said it was, subject always to the overreaching demands of the U.S. Constitution. Further, he wrote that law was not a monistic or unchanging institution, but reacted to and was molded by the changing conditions of society, recognizing new needs as they arose. If it were held, for example, that it were a valid exercise of the state's police power to call for fire escapes in hotels or air vents in deep mines, which applied only to specific classes of persons or specific situations seen to need remedy, then the police power could validly be exercised when it regulated occupations deemed hazardous to the health of workers engaged in them.
The Court took a liberal stand on a social issue in their decision, when they extended the protection of the 14th Amendment to miners:
While the general experience of mankind may justify us in believing that men may engage in ordinary employments more than eight hours per day without injury to their health, it does not follow that labor for the same length of time is innocuous when carried on beneath the surface of the earth, where the operative is deprived of fresh air and sunlight, and is frequently subjected to foul atmosphere and a very high temperature, or to the influence of noxious gases, generated by the processes of refining or milling.
In considering Bert's argument that a contract for employment entered into by an employer and an employee was a free and voluntary one, not subject to regulation by the state, Mr. Justice Brown agreed with the decision of the Utah Supreme Court, holding:
The legislature has also recognized the fact, which the experience of legislators in many States has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a certain extent, conflicting. The former naturally desire to obtain as much labor as possible from their employees, while the latter are often induced by the fear of discharge to conform to regulations which their judgement, fairly exercised, would pronounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules and the laborers are practically constrained to obey them. In such cases self interest is often an unsafe guide, and the legislature may properly interpose its authority.
The Court interjected an unexpected note of wry humor in their decision at this point, when they rejected a naive assertion by Bert's attorneys that could not stand notice even in 1897:
It may not be improper to suggest in this connection that although the prosecution in this case was against the employer of labor, who apparently under the statute is the only one liable, his defense is not so much that his right to contract has been infringed upon, but that the act works a peculiar hardship to his employees, whose right to labor as long as they please is alleged to be thereby violated. The argument would certainly come with better grace and greater cogency from the latter class.
It is unusual for the Court, at any time, to rebuke a party appearing before them, so we may assume that the perceived speciousness of this argument, and indeed, Bert's entire case, was grosser than the Court was accustomed to hearing.