Justice Frankfurter, who is certainly not unfriendly to New Deal theories, cited this case approvingly in a decision rendered since the outbreak of World War II.

Chief Justice Hughes in 1937 spoke of liberty of contract as "liberty in a social organization which requires protection of law against the evils which menace the health, safety, morals, and welfare of the people.""

In this case are listed decisions as to hours of labor, wages, employers' liability, and "regulations designed to insure wholesome conditions of work and freedom from oppression"-not one of these questions the liberty of choice of employees. We may not only concede that these decisions are within the Constitution, but go further. We may go further, and admit the right to fix prices on transported articles when transported by businesses with a public interest.

We will also concede the right of the State or of the United States to fix standards for public works.

We will agree with the recent utterance of the United States Supreme Court that "The authority of the Federal Government over interstate commerce does not differ in extent or character from that retained by the States over intrastate commerce." 10

We agree unreservedly with the statement by the Supreme Court of the United States that the State or the United States has the right to provide what kind and character of labor shall be employed on public contracts.

The Supreme Court has well said: "Like private individuals and businesses, the Government enjoys the unrestricted power to produce its own supplies, to determine those with whom it will deal, and to fix the prices and conditions upon which it will make needed purchases." "1 [Emphasis ours.]

In 1923, the Supreme Court of the United States, citing a number of its decisions, said: "It is the right 'long recognized,' of a trader engaged in an entirely private business, freely to exercise his own independent deal." 1a

In title 29, section 102, of the United States Code, we find under the heading "Public policy in labor matters declared," the statement "though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, etc."

The natural right of the employee is thus clearly stated, and in justice, as well as under the Constitution of the United States, it would violate due process of law to make a different rule for an employer, and to deny him the right and freedom "to decline to associate with his fellows" or to exercise the coequal right of selection of his associates.12

Fifty years ago, a Supreme Court with six Republican Justices sitting, held, through one of them, that separate railroad accommodations for white and colored were permissible, saying: "Legislation is powerless to eradicate racial instincts * and the attempt to do so can only result in accentuating the difficulties of the present situation." 13

In this case the Court further said: "Every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class."

13

It quoted the expression of Justice Bradley in a previous case: "It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person might see fit to make as to the guests he will entertain or as to the people he will Ideal with in other matters of intercourse or business." 14

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And again, "In determining the question of reasonableness it is at liberty to act with reference to the established usages, customs, and traditions of the people." "

913

And still again, "The argument also assumes that social prejudices may be overcome by legislation and that equal rights cannot be secured to the Negro except by an enforced commingling of the races. We cannot accept this proposition."

13

8 Faitoute I. & C. Co. v. Asbury Park (316 U. S., at p. 514).

9 West Coast Hotel Co. v. Parrish (300 U. S., at n. 391).

10 U. S. v. Rock Royal Co. (207 U. S.. at p. 569-570).

11 Perkins v. Lukens Steel Co. (310 U. S., at p. 127).

12 Federal Trade Commission v. Raymond Bros., etc. (263 U. S., p. 573).

13 Plessy v. Ferguson (163 U. S., at pp. 551. 543, 550, and 551).

14 Civil Rights Cases (109 U. S., at pp. 24-25).

On that conclusion we stand, "We cannot accept this proposition."

There can be no basis for a claim that the Civil War amendments created any powers that were not hitherto possessed by State or United States. The only effect of those amendments was to destroy discriminations.

The thirteenth amendment abolished slavery and involuntary servitude and was binding on both forms of government.

The fourteenth amendment imposed on States the recognition of citizenship of all United States citizens and forbade infringement of rights of such citizens, forbade the States depriving any person of life, liberty, or property without due process of law, and forbade denial to any person of equal protection of the law. The fifteeenth amendment restrained the States from denying the right to vote on account of race, color, or previous servitude.

In the period known as the Reconstruction Era, when the Supreme Court was forced to be supremely race conscious, President Lincoln's appointee, Justice Miller, as the organ of a unanimous Court, said of the fourteenth amendment: "The most liberal advocates of the rights conferred by that amendment have contended for nothing more than that the rights of the citizen previously existing * are now placed under the protection of the Federal Government." 15 The right to employ citizen or alien, white man or free Negro, or slave with the master's consent, was never embarrassed by any law, but left entirely to the free will of the employer, and this right had never been questioned when the Civil War amendments were made part of the Constitution.

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As long ago as 1852 the Supreme Court of the United States said, "The rule of 'respondent superior,' or that the master shall be civilly liable for the tortious acts of his servants, is of universal application. Nothing but the most stringent enforcement of discipline, and the most exact and perfect obedience to every rule and order emanating from a superior, can ensure safety to life and property."

Take away from any employer the right to determine whom he should employ and you deprive him of that freedom of selection on which alone responsibility must depend.

It is no answer to this to say that collective bargaining takes away this right, and that collective bargaining has been upheld by the Supreme Court. Collective bargaining in itself does not bring employees into a labor organization; in fact the Supreme Court has held that if a bargaining representative discriminates against nonunion members, the union "members may be enjoined from taking the benefit of suh discriminatory action."

Even Justce Harlan, who dissented in the Civil Rights cases from the balance of the Court, said: "Whether one person will permit or maintain social relations with another is a matter with which Government has no concern."

The Reverend Jno. A. Ryan in an article on Labor, Catholic Encyclopedia, said: "There can be no such prerogative as an unconditional right to a social relation." Everyone recognized the distinctiveness of the expression "social relations" and "social equality."

The first describes the ordinary relations which association brings about among men; the second is descriptive of a status in society.

In our early history Chief Justice Marshall held that “A contract is a compact between two or more parties" 18 and the Supreme Court said in 1892, "The word 'compact' is generally used with reference to more formal and serious engagements than is usually implied in the term ‘agreement'-covers all stipulations affecting the conduct or claims of the parties."

19

The term "freedom of contract," it follows, means the right to "cover all stipulations."

Chief Justice Hughes in NLRB v. Fansteel Metal Corp. (603 U. S. 259), speaks of "the normal right to select its employees."

And only a valid law justified by custom; practical and not experimental; improving social relations, not subjecting them to political expedience, and securing domestic tranquillity can affect true freedom of contract.

I wish to quote, now from the author (Father Hill) of the book on Ethics, which was used for years in the Jesuit schools, and to submit that the quoted statement is incapable of misunderstanding. This is the quotation :

15 Bartemeyer v. Iowa (85 U. S., at p. 133).

16 Philadelphia & Reading R. Co. v. Derby (14 Howard, at pp. 486. 487).

17 Steele v. L. & N. R. R. (323 U. S. 192).

18 Fletcher v. Peck (6 Cranch, at n. 137).

19 Va. v. Tenn. (148 U. S., at p. 520).

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"Certainly one workman is allowed to refuse his services to whatsoever employer, and one employer is allowed to refuse employment to whatsoever workman.” No theory can destroy the difference race and color impose and make personal contacts naturally unpleasant, tolerable even.

Seventy-five years ago, the Supreme Court said: "Consent is the very essence of a contract," ,"20 and if there be compulsion there is no consent.

While for a century and a quarter after the independence of the States was proclaimed, there was general agreement that the Federal Government had no "police power," the Court invented one under the commerce clause, and like all weedy growths it has a strangle hold on the grain of good government. However, it has not as yet gone so far as to compel equality of racial relations under private contracts. Association is of the essence of assembly, for assembly is constituted through association of persons; and the right of assembly is guaranteed by the first amendment to the Constitution. An assembly for the purpose of pursuing any law object, and the carrying on of a legitimate business as such, must be as free in its choice of those who assemble as should a religious or other organization enjoying the privileges accorded by the Constitution.

The "police power" which the modern appointees of radical Presidents have found to be the fruition of the commerce clause found its advanced flowering in the Wilburn case, decided by Justice Jackson, who is now American prosecutor of German war criminals, where it was held that a man could not eat "excess wheat" raised by him beyond his quota. But the same Justice Jackson said in the well-advertised Flag Salute case: "The very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes of public controversy, to place ⚫ them beyond the reach of majorities and officially to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights, may not be submitted to vote; they depend on the outcome of no elections. [Emphasis ours.] And again, "If there is any fixed star in our national constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."

21

The right to choose employees, friends, associates, spouses, falls under the law of natural selection, a natural right, an unalienable right, a fundamental, "reserved' 'to man by the tenth amendment, ard by the ninth "retained" to him. Pope Pius X said: "The mutual relations between capital and labor must be determined by the laws of the strictest justice called commutative justice, supported however by Christian charity."

That the duty of charity is moral only is emphasized by Pope Leo XIII, in his encyclical "on the condition of the working classes" in this manner: "It is a duty to give to the indigent out of what remains over. 'Of what remaineth, give alms.' It is a duty, not of justice (save in extreme cases), but of Christian charity-a duty not enforced by human law."

This is repeated in the encyclical of Pope Pius XI, in these words: "The putting of one's possessions to proper use, however, does not fall under this form of justice, but under certain other virtues and therefore it is 'A duty not enforced by courts of justice.'”

The last eight words are quoted from Pope Leo.

It might be asked what is meant by "this form of justice."

The sentence preceding the last quotation read: “That justice which is called commutative justice commands us faithfully to respect the possessions of others, not encroaching on the rights of another and thus exceeding the rights of ownership."

Each of these Popes teach as has been taught for centuries:

"The division of goods which is effected by private ownership is ordained by nature itself." Pope Pius XI.

"Private ownership is in accordance with the law of nature.” Leo XIII. We could repeat such statements from the encyclicals but since they are in strict accord with the commandments "Thou shall not steal" and "Thou shalt not covet" we submit that proof enough has been shown.

Just as the Constitution declares that it was established to "promote the general welfare," we find in the theological authorities quoted the words "common good" which have the same meaning.

20 Baker v. Norton (79 U. S. (12 Wall.), at p. 157).

21 West Virginia Bd. of Ed. v. Barnette (319 U. S., at pp. 638, 642).

In neither lay nor religious teaching do we find authority for class legislation by positive or negative enactment, by direction or indirection, by ordering or by forbidding, and disguised though it be the FEP Act is class legislation, for it is based on class discrimination which would be exercised by an owner in regard to his property. If legal and valid it could be extended to all other contracts, including the rental of houses or, to make it more evident, to apartments in a large apartment building, to domestic servants, and to membership in fraternal organizations. It would operate so as to apply to long-established businesses, where only white have been employed, or where only Negroes are employed, and in either case the entry of an alien element would mean discordant disaster.

There are certain things which fall under justice and others under charity and the act of an employer in employing people that he did not want would be in the nature of an act of charity and the law cannot control this. We would refer the committee to the language of the preamble to the Constitution and the first paragraphs of the Declaration of Independence, which class as an unalienable right the pursuit of happiness and we would call attention to a statement of the old pagan philosopher Aristotle, who proclaimed: "He is free who is his own master" and to Aristotle's great disciple, St. Thomas Aquinas, who said: "Free choice is part of man's dignity" and who also wrote these words: "The more a thing is desired and loved, the more does its loss bring sorrow and pain. Now happiness is most desired and loved; therefore its loss brings greatest sorrow." The brief filed by Mr. Tuttle on behalf of the proponents of Senate bill 984 cites quite a number of cases. In not one of these is the point at issue even touched. To illustrate:

On page 6 he cites U. S. v. Cruikshank (92 U. S. 542, 553 (1875)). The opponents of this bill readily agree to the opening words of this citation which are: "The rights of life and personal liberty are the natural rights of man," and the subsequent statement: "The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these 'inalienable rights with which they were endowed by their Creator.' Sovereignty, for this purpose, rests alone with the State."

At the top of page 8 a New Jersey case entitled, "Carroll v. Local 269" (133 N. J. Eq. 144, 147), is cited as follows: "The right to earn a livelihood is a property right which is guaranteed in our country by the fifth and fourteenth amendments of the Federal Constitution and by the State constitution."

No one will take issue with this statement.

The next case cited on page 10 is New Negro Alliance v. Sanitary Grocery Co. (303 U. S. 552). The question in this case was whether or not the controversy involved or grew out of a labor dispute. The Court held that it did and denied an injunction against picketing but did not pretend to hold that the grocery company must employ colored help.

There are several State cases cited to which we do not refer.

On page 11 of the brief we find Railway Mail Association v. Corsi (326 U. S. 88). In this case the rights of an employer are not discussed but, one the contrary, the Court held that under the New York civil rights law a labor organization was subject to penalty for denying membership to a Negro. This finding was based on the fact that the organization held itself out "to represent the general business needs of the employees."

One page 94 of 326, U. S., is it generally agreed that the States have the right to make requirements of organizations operating under a corporate or associated form.

In Steele v. Louisville & N. R. R. Co. (323 U. S. 192), cited on page 12, the Court held that where a labor organization acted as the exclusive bargaining representative of railway firemen it was the duty of such organization not to discriminiate against Negro firemen even though the ritual of the organization excluded Negroes from membership. It is readily seen that this case had nothing to do with the right of an employer. On the other hand, it bears out the contention made by the opponents of the FEPC bill in that it shows the sentiment between the white employees and the Negro employees of the railroad and the incompatibility that exists.

Also on page 12, the case of Morgan v. Virginia (328 U. S. 373) was cited. It was determined in this case that the law of the State of Virginia requiring separate accommodations for white and colored passengers could not be applied to interstate passengers since it pertained to commerce. This case was the latest decision of its nature. A hearing of it convinces us that the Supreme Court of the United States still recognizes the case of Hall v. DeCuir (95 U. S. 485), as binding law.

To quote from Morgan v. Virginia :

"The DeCuir case arose under a statute of Louisiana interpreted by the courts of that State and this Court to require public carriers to give all persons traveling in that State, upon the public conveyances employed in such business, equal rights and privileges in all parts of the conveyance, without distinction or discrimination on account of race or color' (p. 487). Damages were awarded against Hall, the representative of the operator of a Mississippi river steamboat that traversed that river interstate from New Orleans to Vicksburg, for excluding in Louisiana the defendant in error, a colored person, from a cabin reserved for whites. This Court reversed for reason well stated in the words of Chief Justice Waite."

In a note on page 384 of Morgan v. Virginia, the Court said:

"If this statute can be enforced against those engaged in interstate commerce, it may be as well against those engaged in foreign; and the master of a ship clearing from New Orleans for Liverpool, having passengers on board, would be compelled to carry all, white and colored, in the same cabin during his passage down the river, or be subject to an action for damages, 'exemplary as well as actual,' by any one who felt himself aggrieved because he had been excluded on account of his color."

THE RIGHTS OF MAN

Thomas Paine, whose writings had so much to do with the success of the American Revolution, in his pamphlet Rights of Man, said:

"From these premises two or three certain conclusions will follow:

"First, that every civil right grows out of a natural right; or, in other words, is a natural right exchanged.

"Second, that civil power, properly considered as such, is made up of the aggregate of that class of the natural rights of man, which becomes defective in the individual in point of power, and answers not his purpose but when collected to a focus, becomes competent to the purpose of every one.

"Third, that the power produced by the aggregate of natural rights, imperfect in power in the individual, cannot be applied to invade the natural rights which are retained in that individual, and in which the power to execute is as perfect as the right itself."

The National Assembly of France, in its Declaration of the Rights of Man and of Citizens, made the following statements:

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"The representatives of the people of France,, formed into a National Assembly have resolved to set forth, in a solemn declaration, these natural, imprescriptible, and unalienable rights:

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"IV. Political liberty consists in the power of doing whatever does not injure another. The exercise of the natural rights of every man has no other limits than those which are necessary to secure to every other man the full exercise of the same rights; and these limits are determinable only by law.

"V. The law ought to prohibit only actions hurtful to society.

"VII. The right to property being inviolable and sacred no one ought to be deprived of it, except in cases of evident public necessity legally ascertained, and on condition of a previous just indemnity."

To return for an instant to Thomas Paine, the Deist, in his Rights of Man, he spoke of this French manifesto thus:

"A declaration of rights is, by reciprocity, a declaration of duties also. Whatever is my right as a man, is also the right of another; and it becomes my duty to guarantee, as well as to possess.

Edmund Burke, in his book "New Wigs and Old," volume 12, page 162, said: "The votes of a majority of the people cannot alter the moral any

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more than they can alter the physical essence of things."

And again in his Tract on the Property Laws he wrote: "Everybody is satisfied that a conservative and secured enjoyment of our natural rights is the great and ultimate purpose of civil society, and that therefore all forms whatsoever of government are only good as they are subservient to that purpose to which they are entirely subordinated."

And Thomas Paine in the pamphlet The American Crisis emphasized one of the things which come under the heading "Pursuit of happiness" in the following words: