Charles Evans Hughes : biography

In a third set of pre-1916 cases, Hughes addressed the laissez-faire doctrine of "liberty of contract." Using this legal principle, many judges in Britain and the United States had voided, as an infringement of an individual’s property rights, legislation that regulated common law bargains made in the marketplace between employers and their workers. But in a seminal article of 1881, "Liberal Legislation and Freedom of Contract," the Oxford political philosopher Thomas Hill Green disputed this reasoning. Green pointed out that the British Factory Acts had already limited the liberty of industrial capitalists and that legislation requiring compulsory schooling had circumscribed the freedom of parents. Extending the logic of these measures, Green adumbrated a positive and collectivist definition of liberty, a concept of "public freedom" that justified legislative oversight of economic life, especially land ownership and use. He likewise proposed legislative intervention into the terms of private bargains, to "provide against contracts being made which, from the helplessness of one of the parties to them, instead of being a security for freedom, become an instrument of disguised repression." Picking up this line of argument and declaring "a great departure from the principles of free contract," Gladstone created an Irish Land Court with complete control over rents and other landlord-tenant issues. Two decades later, Churchill and other New Liberals regularly invoked Green’s arguments in parliamentary debates over English legislation.

Similar arguments appeared in the United States. In an article in the Columbia Law Review in 1908, Roscoe Pound of the University of Chicago mounted a vigorous attack on "mechanical jurisprudence," the judicial practice of "rigorous logical deduction from predetermined conceptions in disregard of … the actual facts." Citing Lochner v. New York, the controversial decision of 1905 upholding freedom of contract, Pound assailed the Supreme Court for giving "us rules which, when applied to the existing commercial and industrial situation, are wholly inadequate." In 1909 Pound continued his assault on conceptual thinking in an essay on "Liberty of Contract." Focusing upon Adair v. U.S. (1908), which invalidated another law regulating labor contracts, he berated the Court for not recognizing the "practical conditions of inequality."

The central problem, Pound argued, was that the legal system "exhibits too great a respect for the individual" and "too little respect for the needs of society." Pound came to this position partly through long debates with his former colleague at the University of Nebraska, the rising sociologist Edward A. Ross. "We have grown into an organic society," Ross argued, "in which the welfare of all is at the mercy of each." The two men continued their dialogue when Ross moved to the University of Wisconsin, where he became a colleague of Richard Ely. Influenced like Pound by German social and legal thinkers, Ely in 1903 had ascribed "the coercion of economic forces" in American society "to the unequal strength of those who make a contract."

Hughes undoubtedly was aware of these intellectual currents. There is no evidence that he was directly influenced by T. H. Green; however, he knew Ely through the AALL and had probably read Pound’s essays. Whatever the precise links, the associate justice wrote opinions that mirrored the arguments of the Oxford philosopher of "positive liberty" and the sociologically inclined Midwestern professors. "Freedom of contract is a qualified and not an absolute right …," Hughes declared in upholding an Iowa law that voided contracts limiting the legal rights of railroad workers: The state may "interfere where the parties do not stand upon an equality…." Using similar reasoning, the associate justice upheld a California law that mandated a forty-eight-hour work-week for women in various industries and allowed a federal statute to override a contract between an interstate railroad and its employees. Finally, Hughes joined Justice Day’s dissent in Coppage v. Kansas (1915), a case in which a majority of the Court struck down a Kansas law forbidding "yellow dog contracts" that prevented workers from joining a union. Citing the police power, Day and Hughes argued that a state could legitimately ban such contracts.